Living marine resources management: a proposal for integration of United States management regimes.
I. INTRODUCTION
II. AN OVERVIEW OF THE PRIMARY STATUTES GOVERNING MANAGEMENT OF MARINE
LIVING RESOURCES
A. The Magnuson-Stevens Fishery Conservation and Management Act
1. Background of Fisheries Management.
2. 1976 Enactment and Structure
3. The 1996 Sustainable Fisheries Act
B. The Marine Mammal Protection Act (MMPA)
1. 1972 Enactment and Structure of the MMPA
2. Major MMPA Amendments
C. The Endangered Species Act (ESA)
III. SOME EXAMPLES OF FAILURE AND CONFLICT IN MARINE LIVING
RESOURCES MANAGEMENT
A. Fisheries Management and Overfishing
B. Fisheries Interactions with Marine Mammals
1. The Tuna-Dolphin Controversy
2. Interaction of Marine Mammals with Other Fisheries
C. The Inherent Conflict in Administration of the ESA
IV. A COMPARATIVE CRITICAL ANALYSIS OF MANAGEMENT ISSUES UNDER THE
PRIMARY STATUTES
A. Management Principles
1. Best Scientific Evidence and the Precautionary Approach
2. Maximum Sustainable Yield and Optimum Yield
3. Management Based on Optimum Sustainable Population
4. Ecosystem-Based Management
a. A Context for Ecosystem-Based Management.
b. NEPA and Ecosystem-Based Management
c. Bycatch and Incidental Taking: An Ecosystem-Based
Management Issue
5. Management to Prevent Overexploitation or Extinction and to
Restore Depleted Species
B. Habitat Protection
C. Consultation in Living Marine Resources Management.
1. Section 7 Consultation Under the ESA
2. Consultation on Actions That Affect EFH
D. Decision Making and the Nature of Resource User Interests
1. Decision Making and the Role of Resource Users Under the
Magnuson-Stevens Act
2. Take Reduction Teams and Reduction of Incidental Catch of
Marine Mammals
3. Preserving Fishing Communities
4. Native Americans: Subsistence Fishing and Tribal Rights
E. State and Federal Jurisdictional Issues
1. State Jurisdiction Under the Magnuson-Stevens Act
2. State Jurisdiction Under the MMPA and ESA
V. A PROPOSED FRAMEWORK FOR MANAGEMENT OF MARINE LIVING RESOURCES
A. An Ecosystem-Based Approach to Management
1. All Marine Living Resources Should Be Addressed Under a
Single Regime Based On Maintaining the Health of the
Ecosystem
2. Ecosystem Boundaries Are Generally Consistent with Current
Regional Management Institutions
3. Ecosystem Management Plans (EMPs) for Living Marine
Resources (LMR) Should Be Developed Following the
Recommendations of the Ecosystems Principles Advisory Panel
B. Habitat Protection
C. Consultation and Cooperation
D. Decision Making.
1. Ecosystem Management Plans Should Be Developed by NOAA
Fisheries in Consultation with LMR Ecosystem Management
Committees
2. Fishery Management Councils Would Continue to Apportion
Allowable Catch
3. Regulation of LMR by States Within State Waters Would Be
Allowed to the Extent Consistent with Ecosystem Management
Principles, Ecosystem Management Plans, the Treaty and
Cultural Subsistence Rights of Native Alaskans and Indians,
and Other International Treaty Obligations. All State
Management of LMR Beyond State Waters Would Be Preempted
Except for Programs That Are Specifically Delegated to
States
VI. CONCLUSION
I. INTRODUCTION For the first time in over thirty years, federal policy for the nation's oceans has come under review to determine how the United States can better manage the uses and resources of its seas. (1) The Oceans Act of 2000 (2) called for the appointment of a presidential commission, the United States Commission on Ocean Policy, (3) to review ocean management legislation and assess current and future ocean uses and activities. (4) The Commission's charge to assess the "cumulative effect" of federal actions on ocean resources and activities, to review the "laws and regulations for inconsistencies and contradictions," and to make "recommendations for resolving ... inconsistencies" (5) has been critiqued by one author as little more than "an efficiency review." (6) The Commission is further charged, however, with making recommendations for a comprehensive national ocean policy that will promote, among other goals, "responsible stewardship, including use, of fishery resources and other ocean and coastal resources." (7) Throughout the public testimony and Commission's deliberations, the need for more effective and coordinated management with an emphasis on an ecosystem-based approach to management was a central focus. (8) Concurrent with the creation of the United States Commission on Ocean Policy, the Pew Foundation, a private organization, established the Pew Oceans Commission to provide an independent report to the nation on recommendations for a new oceans policy. (9) The report of the Pew Commission, released in June 2003, makes strong recommendations to move toward comprehensive management of the oceans on an ecosystem-wide basis. (10) The goal of creating an oceans regime that provides an ecosystem-based approach to management across sectors ranging from fisheries and other living resources, energy development, coastal and marine pollution, navigation and commerce, national security, coastal management, and other areas that affect the marine environment is laudable, but extremely controversial and perhaps ultimately overwhelming if not approached incrementally. Even if a broad-based ecosystem approach--such as that recommended by the Pew Oceans Commission--is adopted, however, problems of conflict and inconsistency within sectors must he resolved. This Article considers an approach to resolving conflicts within the sector of living marine resources management that could provide an incremental step toward comprehensive ecosystem-based management. The primary laws governing management of living marine resources were developed independently of each other and reflect differing management goals, ranging from maximum sustainable exploitation to preservation. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act or MSA) (11) requires management of fisheries to conserve the resource to optimize yield. The Endangered Species Act (ESA) (12) attempts to protect imperiled species and recover them from the brink of extinction. The Marine Mammal Protection Act (MMPA) (13) protects marine mammals that are in danger of extinction or depletion, but also controls the taking of healthy populations to keep them at optimum sustainable levels. In addition, living marine resources have generally been managed on a species-by-species or crisis-by-crisis basis, contributing to the difficulty of reconciling the management goals of these laws. While the goals of these primary statutes may be generally compatible, when they are applied to a natural system where all the managed species coexist, conflict is often inevitable. Even the fact that all these laws are administered by the same agency--NOAA Fisheries in the Department of Commerce (14)--has not mitigated the difficulty in harmonizing the goals of the laws. This Article proposes the integration of management of marine living resources to create a more comprehensive approach that places the health of the ecosystem as the primary management objective. Section II of the Article reviews the three primary statutes governing management of marine living resources. Section III discusses examples of some of the failures, problems, and conflicts created by the current management regimes. Section IV provides a critical comparative analysis of the major management issues that have arisen under the primary statutes. Finally, Section V proposes a framework of principles for a comprehensive management regime for marine living resources. II. AN OVERVIEW OF THE PRIMARY STATUTES GOVERNING MANAGEMENT OF MARINE LIVING RESOURCES A. The Magnuson-Stevens Fishery Conservation and Management Act 1. Background of Fisheries Management Historically, states were the primary managers of the United States's fisheries. The states had regulated fisheries in inland waters and the three-mile territorial sea and beyond since colonial times. (15) After World War H, however, the nature of fisheries exploitation changed significantly, and state management was inadequate to deal with these changes. Foreign fishing in seas off the coasts of the United States increased dramatically as new fishing technologies developed and distant water, foreign fishing fleets proliferated. The United States witnessed the resources off its shores being overexploited by growing foreign fishing fleets and found that its relatively small and unsophisticated domestic fleets were at a severe competitive disadvantage. (16) Multilateral treaties and regional fisheries organizations attempted to address the depletion of fish stocks, (17) but neither these attempts at international cooperation nor creation of a twelve-mile fishing zone around the United States in 1966 by the Bartlett Act (18) slowed depletion of fish stocks. As the United Nations convened the Third Conference on the Law of the Sea (UNCLOS III) in 1973, issues concerning coastal state jurisdiction and the conservation of fish stocks were of central concern. 2. 1976 Enactment and Structure Early in UNCLOS III negotiations, substantial consensus was reached that coastal nations should have sovereign rights over fishery resources to 200 miles offshore, but it was clear that conclusion of the Conference was nowhere in sight. The concern of Congress that negotiations were proceeding too slowly to prevent the decimation of offshore fisheries and the U.S. fishing industry led to passage in 1976 of the Fishery Conservation and Management Act, now named the Magnuson-Stevens Fishery Conservation and Management Act. The Act extended exclusive U.S. fisheries jurisdiction to 200 miles offshore. (19) The Act originally designated the management area a fishery conservation zone, but it was later amended to reflect the United States's claim in 1983 to a 200-mile exclusive economic zone (EEZ) that incorporated fishery management jurisdiction. (20) The policies and purposes of the Act address both the conservation, development, and management of fishery resources and the development of domestic commercial and recreational fishing. (21) The Act, as amended in 1996, provides ten "National Standards" (22) that reflect these purposes and provide overarching principles to guide the entire fisheries management process. National Standards 1, 2, and 9 require fisheries management plans (FMPs) to establish conservation and management measures based on the best scientific information to prevent overfishing, minimize bycatch, and assure optimum yield. (23) National Standards 3 through 7 provide that nondiscriminatory means should be used to manage fisheries throughout their range. (24) Measures should be taken to avoid duplication and promote efficiency, but cannot have economic allocation as a sole purpose. National Standards 8 and 10 require management measures to take into account the effects on fishing communities and to promote the safety of life at sea. (25) The Magnuson-Stevens Act established eight regional fishery management councils (FMCs or Councils) (26) to develop FMPs (27) and to propose regulations (28) that will generate "optimum yield" (OY)--the amount of fish providing "the greatest overall benefit to the Nation" (29)--from the region's fisheries. The FMPs are implemented through regulations (30) of the U.S. Department of Commerce (DOC) and NOAA Fisheries. The Councils include the regional director of NOAA Fisheries, state fishery management officers, and appointed individuals from each state. (31) 3. The 1996 Sustainable Fisheries Act The 1996 reauthorization of the Magnuson-Stevens Act, known as the Sustainable Fisheries Act (SFA), (32) involved a "reality check" about the success of the Act and its implementation. After twenty years, the lack of progress toward sustainable fisheries called for serious reconsideration of management principles. The SFA made major changes and added many new concepts and requirements to the Magnuson-Stevens Act. (33) These changes included major modifications and new elements in the fishery management process, emphasized the protection of fish habitat, and reflected international developments in resource management principles discussed more fully below. B. The Marine Mammal Protection Act (MMPA) 1. 1972 Enactment and Structure of the MMPA Motivated largely by public concern over the deaths of dolphins, baby seals, and whales, (34) Congress in 1972 passed the MMPA. (35) The preservationist philosophy of the Act was reflected in several ways, including MMPA management principles that focus on the health of the populations, rather than yield, and the Act's fundamental approach of establishing a "moratorium" on the taking of all marine mammals in U.S. waters and by U.S. citizens on the high seas. (36) This moratorium is not absolute, however, and contains a waiver provision, an exemption for Alaskan Natives, and a number of other exceptions. The starting point for MMPA protection is a moratorium on the taking and importation of marine mammals and marine mammal products. (37) "The term 'take' means to harass, hunt, capture, or kill ... or to attempt to engage in any such conduct." (38) To authorize a waiver of the moratorium, the Secretary must determine that a species or stock is at its "optimum sustainable population" (OSP) (39) and that the waiver will not disadvantage the population, i.e., will not reduce the population below OSP. (40) The MMPA also contains a number of statutory "exceptions" to the moratorium. First, the Secretary may issue permits "for purposes of scientific research, public display, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock." (41) The second exception to the moratorium is for permits and authorizations for taking marine mammals incidental to commercial fishing operations. (42) The Secretary is also authorized to permit the unintentional taking of "small numbers of marine mammals" incidental to activities other than fishing, such as outer continental shelf (OCS) oil and gas development, seismic activity, and military activities. (43) Other exceptions allow marine mammals to be taken for their protection or welfare, (44) to deter marine mammals from damaging property (including fishing gear and catch), (45) or when necessary to protect human life. (46) The MMPA also contains an exemption from the moratorium for takings by Native Alaskans (Indian, Aleut, or Eskimo) if the taking is for subsistence purposes or creating native crafts, and is not accomplished in a wasteful manner. (47) 2. Major MMPA Amendments The 1994 amendments reconciled the provisions of the MMPA with the impact of incidental taking of marine mammals in commercial fishing operations. A 1988 court ruling had threatened to close numerous major fisheries because the court found that incidental take permits were required for the fisheries, but that permits could not be issued for healthy stocks if it were likely that marine mammals from stocks depleted or of unknown status would also be taken. (48) In response to that ruling, Congress enacted a five-year interim exemption on the incidental take provisions and authorized the continued taking of marine mammals incidental to commercial fishing. This interim exception had an immediate goal of reducing mortality and serious injury to marine mammals in the course of such operations to "insignificant levels approaching zero mortality and serious injury rate," (49) while limiting incidental take in fisheries to less than the stocks' potential biological removal (PBR) (50) level. The amendments included requirements to prepare assessments for all marine mammals in U.S. waters (51) and to develop and implement take reduction plans for marine mammal stocks that are below OSP due to fishery interactions. The implementation of these amendments is discussed further in Sections III.B.2. and III.E.2. Numerous major amendments to the MMPA specifically addressed dolphin mortality in commercial tuna fishing. Amendments in 1981 required that dolphin mortality be reduced to "insignificant levels," (52) and regulations during the 1980s drastically reduced annual quotas. Observers monitored and enforced regulations and quotas on all U.S. tuna boats. (53) In 1990, the Dolphin Protection Consumer Information Act began regulating tuna labeling. (54) The tuna-dolphin fisheries conflict is discussed further in Section III.B.1. C. The Endangered Species Act (ESA) The Endangered Species Act of 1973 (ESA) created the current regulatory regime for endangered and threatened species, providing for the protection of species that are in danger of extinction throughout all or a significant portion of their range. (55) Species that axe determined likely to become endangered in the foreseeable future are listed as "threatened." (56) The U.S. Fish and Wildlife Service (FWS) primarily coordinates ESA activities for terrestrial and freshwater species, while NOAA Fisheries is responsible for marine and anadromous species. (57) This Article's discussion will focus on NOAA Fisheries's role in the ESA's regulatory scheme, although FWS does have authority over a number of species that are within the marine environment. (58) Any "interested person" may petition to have a species considered for listing as endangered or threatened under the ESA. (59) Within 90 days of the filing of a listing petition, the agency must determine whether the petition presents substantial information that listing may be warranted; an affirmative answer to this question triggers a status review of the species. (60) NOAA Fisheries or FWS can also initiate a status review of a species independently. (61) A species is to be listed if it is threatened or endangered by any of the following five circumstances: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. (62) The listing decision must be based solely on the "best scientific and commercial data available." (63) Economic considerations are not relevant to the listing decision. When a species is listed, FWS or NOAA Fisheries is required to develop and implement a recovery plan for the conservation and survival of the endangered or threatened species. (64) To the "maximum extent prudent and determinable," (65) the Secretary must make critical habitat designations concurrently with the listing of a species. (66) "Critical habitats" for endangered or threatened species are areas that are "essential to the conservation of the species," or areas that require "special management considerations or protection." (67) Designation of critical habitat must be based on "the best scientific data." (68) But unlike listing decisions, FWS and NOAA Fisheries must consider the economic impact of the designation. Areas can be excluded from critical habitat designation when the economic impacts of the designation outweigh the benefits of inclusion, unless the failure to designate the critical habitat will result in extinction of the species. (69) As with the MMPA, the prohibition of take by any person subject to U.S. jurisdiction of protected species under section 9 of the ESA is the starting point for regulation. (70) The ESA defines the term "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." (71) NOAA Fisheries (and FWS) regulations provide that the term "harm" includes significant alteration or destruction of the habitat of listed species. (72) The regulation further provides that harming includes action that changes or degrades the habitat of a listed species where it actually kills or injures the species "by significantly impairing essential behavior patterns, including breeding, spawning, rearing, migrating, feeding, and sheltering." (73) The ESA contains a number of exceptions to the take prohibition. NOAA Fisheries or FWS may issue permits for scientific purposes or to enhance survival, (74) and for establishment of experimental populations. (75) Like the MMPA, the ESA contains a takings exemption for subsistence purposes of endangered or threatened species by Native Alaskans, (76) who may also sell the inedible byproducts of the wildlife when incorporated into "authentic native articles of handicrafts and clothing." (77) NOAA Fisheries or FWS may permit a take of endangered species that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." (78) Applicants for an incidental take permit must submit a conservation plan which specifies the following: 1) the impact of the taking, 2) a mitigation scheme that specifies measures to be taken to minimize the impacts and that ensures adequate funding is available, and 3) the alternative actions considered and why they were not adopted. (79) After the opportunity for public comment, the permit may be issued if the Secretary finds that the applicant has adequate funding to implement a plan that minimizes and mitigates impacts of the take to the maximum extent practicable and that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." (80) The ESA also contains a separate incidental take exception under similar circumstances for actions funded, authorized, or carried out by federal agencies. (81) Section 7 of the ESA requires all federal agencies to consult with NOAA Fisheries under certain circumstances. The Act provides: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical.... (82) After initiation of consultation ... the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources ... which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.... (83) When consultation is required, NOAA Fisheries must prepare a "biological opinion" to determine whether the activity will jeopardize an endangered species or adversely modify its critical habitat. (84) If the biological opinion makes a "jeopardy finding," NOAA Fisheries will recommend "reasonable and prudent alternatives" that can be taken to avoid the jeopardy to the species or its habitat. (85) The agency taking the action is not required to follow the specific recommendations, but the agency must still ensure that its action will not jeopardize the continued existence of a species or result in the destruction or adverse modification of its critical habitat. (86) If the action agency chooses not to follow the recommended alternatives, it "does so subject to the risk that [it] has not satisfied the standard of section (7)(a)(2)." (87) III. SOME EXAMPLES OF FAILURE AND CONFLICT IN MARINE LIVING RESOURCES MANAGEMENT A. Fisheries Management and Overfishing The major overhaul of the Magnuson-Stevens Act involved in the reauthorization and amendment by the 1996 SFA was a recognition of the inadequacies of the Act to achieve sustainable fisheries. One commentator characterized the original 1976 provisions as exhibiting "ambitious, but ambiguous regulatory design, confusion of scientific and political visions, and a lack of administrative will." (88) The 1996 SFA's goals, time limits, procedural and structural reforms, as well as the Act's clarification and prohibition on overfishing, addressed many of these weaknesses. NOAA Fisheries has recently pointed to its successes in rebuilding fisheries since enactment of the SFA, noting that in the past five years, "twenty species have been taken off the overfished list and overfishing has been eliminated for twenty-five species." (89) This optimistic statistic is somewhat diluted by the fact that in the same period overfishing has begun in 14 cases, and in 13 cases a stock has become overfished. (90) While progress is being made, 86 stocks are currently overfished and 66 stocks are experiencing overfishing. (91) Furthermore, the overfished status of 695 stocks remains classified as "unknown or not defined," (92) and whether overfishing is occurring cannot be determined in the case of 658 other stocks because the harvest rate is not known or NOAA Fisheries has not yet defined the threshold for overfishing. (93) The failures of the management regimes for numerous fisheries have been widely documented as have a number of causes, including: 1) mismanagement by regional fisheries councils and NOAA Fisheries, 2) overexploitation of unregulated fisheries as fishermen have fished "down the food web," and 3) uncontrolled bycatch that decimates populations of nontargeted stocks. Perhaps the most well known management disaster is the New England groundfish fishery. (94) As stocks of cod (Gadus morhua), haddock (Melanogrammus aeglefinus), and yellowtail flounder (Pleuronectes ferruginea) collapsed between 1982 and 1994, the New England Regional FMC implemented conservative and generally ineffectual measures to "manage" the fisheries. (95) By the time the SFA called for the end of overfishing and the rebuilding of overfished groundfish stocks, the biomass of some groundfish stocks had reached levels that could require more than a decade to rebuild. (96) Drastic reductions in fishing mortality since 1994 have led to some significant recovery of groundfish stocks, but recent court decisions recognize that overfishing of these stocks has continued and that proposed measures are not adequate to rebuild stocks. (97) Although both conservationists and fishermen struggled to develop a workable plan, the court felt it was forced to reject both the FMP amendment and the settlement agreement achieved by the parties. (98) In the process of attempting to fashion a remedy, a frustrated Judge Kessler of the U.S. District Court for the District of Columbia "laid much of the blame" on NOAA Fisheries for the failure to develop a plan to stop overfishing, rebuild the stocks, and monitor bycatch. (99) Judge Kessler subsequently reconsidered her action, vacating her opinion that issued an order to govern the fisheries pending a new FMP amendment (100) and stating her conclusion that the order: would produce unintended consequences. Those changes would (1) not only fail to produce the results the Court was seeking to obtain, but might further imperil the particular vulnerable species for which the Court was trying to provide additional protection; (2) seriously unbalance the comprehensive partial Settlement Agreement which settling parties intended to be implemented as an integrated whole; and (3) cause grave economic and social hardship, as well as injustice to individuals, to families, to fishing communities, and to surrounding cities and states. (101) Judge Kessler ordered promulgation of an amendment of the FMP by August 22, 2003, "that complies with the overfishing, rebuilding, and bycatch provisions of the SFA." (102) As the groundfish stocks in New England declined, unutilized and unregulated species, like the spiny dogfish (Squalus acanthias), became dominant in the ecosystem. Fishermen found markets for the spiny dogfish in England for fish and chips, and as depleted stocks and increased regulation limited groundfish catch, unregulated commercial fishing for spiny dogfish increased tenfold. By 2000, the targeted female population had decreased by eighty percent. At that point the fishery was in danger of collapse, but it was 2002 before an FMP was put in place to begin rebuilding the stock. (103) This phenomenon is known as "fishing down the food web" and is a common practice as traditional fisheries become depleted. Although fishing down the food web has provided an economic "prop" for struggling fishermen, the practice further disrupts the ecosystem, making recovery of the traditionally fished stocks even more difficult to achieve. (104) The Gulf of Mexico red snapper (Lutjanus campechaus) fishery provides a third example of the challenges for fishery management on a species-by-species approach. Red snapper and shrimp are two of the Gulf of Mexico's most valuable fisheries. Red snapper has declined significantly, however, and much of the problem is attributed to the mortality of millions of juvenile red snapper as bycatch in shrimp fisheries. (105) In 1990, it was estimated that the entire allowable catch of red snapper would be harvested by shrimpers as bycatch. (106) NOAA Fisheries "estimated that less than 20% of each year class of juvenile red snapper survive the period of exposure to the shrimp fishery, and that the red snapper stocks cannot recover unless the mortality from shrimp trawling can be reduced by at least 50%." (107) The dilemma facing the Gulf FMC was that the red snapper problems could not be directly addressed by managing the harvest of red snapper. (108) Implementation of the 1996 SFA required that a rebuilding plan be put in place for the overfished red snapper and that the shrimp fisheries take measures to reduce bycatch. The Gulf FMC voted in 1997 to require bycatch reduction devices (BRDs) in the shrimp fishery (109) and subsequent improvements in BRDs have led to increases in their effectiveness. Red snapper continues to be an overfished stock, however, and is subject to continued overfishing. A 1999 rebuilding plan was rejected by NOAA Fisheries, and the Gulf FMC's 2001 plan to rebuild the red snapper stocks by 2032 was also rejected for failure to comply with the National Environmental Policy Act. (110) A third attempt at a rebuilding plan is in progress. B. Fisheries Interactions with Marine Mammals 1. The Tuna-Dolphin Controversy In the 1950s, tuna fishermen began exploiting the interaction between tuna and dolphins in the eastern tropical Pacific Ocean to facilitate locating tuna and catching them by encircling the dolphins with purse seines. In the process, enormous numbers of dolphins were killed. The annual dolphin mortality rate in the largely U.S. fishery was estimated at over 350,000. (111) The enactment of the MMPA is in large part attributed to the public reaction to this high dolphin mortality and a few other high profile issues. Regulation of U.S. tuna fishermen became incrementally stricter during the 1970s, and mortality rates dropped significantly. In 1981, the MMPA was amended to allow dolphins to be taken in the tuna fishery "in the course of purse seine fishing for yellowfin tuna by a continuation of the application of the best ... safety techniques and equipment that are economically and technologically practicable." (112) During the 1980s, regulation of U.S. fishermen brought the incidental kill of dolphins to below 20,000 per year, but high mortality associated with growing foreign fleets led to preservationists pressuring Congress to place additional restrictions on fishing in the 1988 amendments to the MMPA. The incidental death rate for dolphins attributed to the U.S. fleet dropped to 5,083 in 1990, 1,004 in 1991, 431 in 1992, and 0 in 1995. (113) While the MMPA was highly successful in protecting dolphins, the Act proved to be the demise of the U.S. tuna fishing fleet. The number of U.S. tuna vessels dropped during the life of the MMPA from a high of 155 in 1976 to 5 in 1995. (114) 2. Interaction of Marine Mammals with Other Fisheries Marine mammals are also killed, injured, or harassed in other commercial fishery operations. At or near the top of the food chain, marine mammals are often in direct competition with fishermen for the same resources. They may be injured or killed by becoming entangled or caught in fishing gear, often in an attempt to take bait or fish caught on the lines or in nets; they can destroy or damage gear and are often harassed to deter them from taking catch or harming gear. Prior to 1988, take of marine mammals incidental to fishing operations could potentially be authorized under two provisions of the MMPA: (115) 1) a permit under a waiver; (116) or 2) a permit for take incidental to commercial fishing operations. (117) Importantly, neither of these sections provided authority for permitting a taking in fishing operations of depleted species. In Kokechik Fishermen's Ass'n v. Secretary of Commerce (Kokechik), (118) fishermen and environmentalists challenged the issuance of a permit to the Japan Salmon Fisheries Cooperative Association to take Dall's porpoises (Phocoenidae dalli) in the course of their salmon fishing in the North Pacific. (119) The permit did not include northern fur seals (Callorhinus ursinus) and other marine mammals which would foreseeably be taken. The Secretary had concluded that it was not possible to make a finding as to whether the potentially affected northern fur seal populations were at or above OSP. The federal court of appeals held that issuance of the permit was contrary to the MMPA, because "it allowed incidental taking of various species of protected marine mammals without first ascertaining as to each such species whether or not the population of that species was at the OSP level." (120) The court's decision had a number of immediate ramifications for both domestic and foreign fishermen. With no authority in the MMPA for issuing permits for the incidental take of depleted species, the Secretary's ability to issue incidental take permits for any fishery was questionable. First, no permit could be issued if it was known that even small numbers of a depleted species would be taken in a fishery. Second, in almost any fishery, the Secretary would be unlikely to be able to make the findings required by the Act for all species taken in a fishery and to issue a permit, either because information was inadequate to determine which animals were likely to be taken incidentally or because data were insufficient to determine whether an identified population was at OSP and would not be disadvantaged. The dissenting judge in Kokechik strongly questioned whether "Congress intended to achieve protection of marine mammals ... by a blanket prohibition inexorably halting all fishing operations." (121) Congress responded in 1988 by enacting an interim exemption to allow commercial fisheries to operate while information necessary for management of interactions was compiled. (122) The 1994 MMPA amendments set up a regime for dealing with the impacts of commercial fisheries on marine mammals with a goal that incidental kill and serious injury of marine mammals "be reduced to insignificant levels approaching a zero mortality and serious injury rate within 7 years." (123) Initially, the Secretary of Commerce and Secretary of the Interior had to prepare stock assessments on all marine mammal stocks that occur in U.S. waters. (124) The assessments categorize each stock as either "strategic" or "non-strategic," i.e., at a level where "human-caused mortality and serious injury ... is not likely to cause the stock to be reduced below its optimum sustainable population (OSP)." (125) The Secretaries must also prepare and annually revise a list of fisheries classified on the basis of whether the fishery has frequent (Category I), occasional (Category II), or remote (Category III) likelihood of incidentally taking marine mammals. (126) Owners of vessels operating in fisheries listed in Category I or II must register for authorizations for incidental takings and comply with any regulations required to reduce takes. (127) The statute also requires vessels in these fisheries to carry observers when requested. (128) The Secretary must develop and implement take reduction plans to assist in the recovery or prevent the depletion of designated strategic stocks of marine mammals that interact with Category I or Category II fisheries. (129) The take reduction plans are developed by take reduction teams (TRTs) (130) composed of representatives of the commercial fisheries and conservation communities, scientists, and others, comprising "to the maximum extent practicable, ... an equitable balance among representatives of resource user interests and nonuser interests." (131) The plans must recommend either regulatory or voluntary measures for reducing marine mammal death and injury. (132) The goal of the plans is to reduce incidental take levels below the potential biological removal level for these stocks within six months, and to insignificant levels approaching zero within five years. (133) The implementation of these provisions has been slow, and it is too early to gauge the success of the take reduction plans. (134) C. The Inherent Conflict in Administration of the ESA The current list of fewer than forty endangered and threatened marine species (domestic and international) (135) likely represents only a small proportion of the marine species eligible for listing under the ESA. Listing of a species can have budgetary and economic implications for NOAA Fisheries for the development and implementation of recovery plans and potentially serious economic impacts for activities that may affect the listed species. Beyond that, listing has major political implications. The fact that NOAA Fisheries plays multiple roles under the ESA, MMPA, and Magnuson-Stevens Act adds yet another factor to the complexity of the current situation. NOAA Fisheries's role to develop fishery management plans for resource exploitation under the Magnuson-Stevens Act can create inherent conflicts with its role as protector under the MMPA and ESA. It is not surprising that the courts have, in some cases, scrutinized agency actions closely where NOAA Fisheries has been both the agency seeking an ESA section 7 consultation and the agency issuing the biological opinion, (136) or the agency approving the "reasonable and prudent alternatives" adopted in the FMP that it is implementing. (137) The conflicts inherent in the process are patent. While the MMPA specifically identifies the species that are protected by that Act, for a species to be protected under the ESA, it must be "listed" through an administrative process. (138) The protections under the MMPA and ESA can be similar, (139) and many species categorized as depleted under the MMPA may also qualify to be listed as endangered or threatened under the ESA. As one court has pointed out, however, "listing [a species as depleted] under the MMPA does not have the regulatory, economic and environmental fallout of a listing as 'threatened' or 'endangered' under the ESA." (140) In spite of the mandatory language of the ESA to list a species if any of the five factors requiring designation exist, (141) courts have allowed the agencies a great deal of discretion in determining whether listing of a species is warranted. In the case of Cook Inlet beluga whales (Delphinapterus leucas), (142) for example, NOAA Fisheries was considering both the listing of the species as depleted under the MMPA and as endangered or threatened under the ESA (which also automatically triggers "depleted" status). (143) A month after NMFS promulgated a final rule designating the Cook Inlet beluga whale as depleted, the agency determined that listing under the ESA was not warranted. Although the ESA requires that the decision be made solely on the basis of the best scientific evidence available, and the record established that agency experts found that the scientific evidence supported the listing of the species, the court stated: The record does contain an agency memorandum reciting that the whales "presently meet some or all of the qualifications for listing under both the ESA and MMPA," and stating that one of the advantages of an MMPA listing is that "interest among the Alaska congressional delegation is high, which opposes an ESA listing." And, one of the agency's own experts stated that the evidence "towards a listing ... are compelling" and that "most knowledgeable scientists would support a listing decision in the absence of politics." These bits of evidence show that the agency's decision was a difficult one and that political considerations may have been lurking in the corridors. They do not establish that, but for "politics," the whale would have been listed under the ESA or that political considerations became part of the decision making process. (144) The court accepted the agency's determination that, under the depleted designation and a legislative moratorium on taking, the whale would no longer be overutilized and therefore did not warrant listing as endangered. (145) In another case, the court addressed whether NOAA Fisheries's adoption of a fishery management plan for a lobster fishery takes endangered monk seals (Monachus schauinslandi) by adverse modification of habitat, i.e., removal of an essential prey species. (146) The court found that the scientific data were insufficient for it to rule as a matter of law that lobster is so essential to the monk seal diet that the FMP constitutes "harm," (147) but the court admonished NOAA Fisheries for failing to take adequate steps to determine whether its approval of the FMP would constitute a taking. "[NOAA Fisheries's] position is essentially that it is innocent of Section 9 violations because it is not aware of any data that confirms that it is in violation of Section 9; such is a head-in-the-sand attitude we do not condone." (148) The court imposed a positive duty on NOAA Fisheries to determine whether approval of an FMP will result in the take of endangered species, either through direct harm to the animal or through modification of its habitat. (149) NOAA Fisheries could not ignore the potential conflict. IV. A COMPARATIVE CRITICAL ANALYSIS OF MANAGEMENT ISSUES UNDER THE PRIMARY STATUTES A. Management Principles 1. Best Scientific Evidence and the Precautionary Approach National Standard 2 of the Magnuson-Stevens Act states that "[c]onservation and management measures shall be based on the best scientific evidence available." (150) In general, this standard recognizes that fisheries research is never going to provide perfect information, but that management must proceed even when critical information may be lacking. (151) This standard highlights the need for more data-gathering, assessment, and fisheries research. But in the meantime, decisions still must be made. When judgments must be made in the absence of adequate information, the unequivocal mandate in National Standard 1 of the Magnuson-Stevens Act to prevent overfishing (152) necessitates that management should err on the side of conservation. Read together, these standards arguably require the FMCs to apply a "precautionary approach" in fishery management. (153) Indeed, the Guidelines for National Standard 1 state: "In general, Councils should adopt a precautionary approach to specification of [optimum yield of a fishery]." (154) In the realm of international environmental law, the precautionary approach is embodied in Principle 16 of the Rio Declaration, (155) which provides that "[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (156) More recently, the United Nations Fish Stocks Agreement, (157) to which the United States is a party, set out in more detail the role that the precautionary approach plays in fisheries management. Parties to the Agreement have the duty to "apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment." (158) Article 6, entitled "Application of the precautionary approach," discusses the basic premise of the precautionary approach: 2. States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or falling to take conservation and management measures. (159) In subsequent sections of Article 6, the Agreement sets out specific actions nations must take to implement the precautionary approach in fisheries management. (160) The United States's participation in the U.N. Fish Stocks Agreement does not directly obligate the U.S. to apply the precautionary approach to management of all fisheries in the EEZ. (161) There seems to be no justification, however, for adopting an inconsistent approach for fisheries occurring solely within the EEZ, and the Agreement provides important "substance" to the concept of the precautionary approach. (162) Application of a precautionary approach to fisheries management is not, however, a panacea for the deficiency of scientific data. The wisdom and fairness of management without clear scientific evidence is not universally accepted. Fishermen often have a different view of management where data are seriously lacking or questionable. (163) Fishermen, and some managers, assert that many management decisions are no more than guesswork. The notion that decisions can be based on critically deficient information or data that are several years old seems at odds with the concept of "best scientific evidence." More and more cases are being brought challenging the scientific basis of regulations, and some judges are giving plaintiffs (both fishermen and environmental groups) a sympathetic ear. (164) While judges generally apply a standard of review that defers to agency expertise if exercised rationally, (165) courts seem to be looking harder at NOAA Fisheries's scientific justifications for taking (or not taking) actions. This leads to the conclusion that even though agency actions may ultimately continue to be upheld, because of the deficiencies in the data on which the decision making depends, the agency and its scientists will spend more time in court justifying the use of data and less time on gathering data and carrying out critical research. (166) The ESA calls for use of "the best scientific and commercial data available" (167) in assessing whether a species should be listed as endangered or threatened, but apparently NOAA Fisheries has no duty to do additional research ff existing data are insufficient. In Southwest Center for Biological Diversity v. Babbitt, (168) the court held that the "Secretary has no obligation to conduct independent studies" (169) to improve the available data. The requirement "merely prohibits the Secretary from disregarding available scientific evidence that is in some way better than the evidence he relies on. Even ff the available scientific and commercial data were quite inconclusive, he may--indeed must--still rely on it at that stage." (170) The fact that data are "not conclusive," however, does not preclude listing. (171) When the Secretary must prepare a Biological Opinion (172) under the ESA to determine whether a federal agency's actions are likely to jeopardize the continued existence of a listed species, (173) the opinion must also be based on the best scientific and commercial data available. (174) In the case of biological opinions, however, courts have found that NOAA Fisheries has an independent duty to provide adequate information upon which to base its findings. (175) 2. Maximum Sustainable Yield and Optimum Yield Maximum sustainable yield (MSY) is defined in the guidelines for National Standard 1, issued in 1998, as "the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological and environmental conditions." (176) Since the 1950s, MSY and the goal of full utilization have been the dominant concepts in fisheries management. (177) The strength of the concept is that it offers a "scientific and objective mode of inquiry" (178) that avoids political, economic, and social issues related to fisheries and focuses on the resource rather than the users. (179) The MSY approach is not without problems and has numerous critics. MSY is often difficult to determine because of the complexity of interrelationships of stock, the insufficiency of available data, (180) and the effects of short-term variations in environmental conditions. (181) Fishing at MSY for a particular managed fishery does not take into account the effects on other stocks in the ecosystem. In mixed stock fisheries, the MSY for each stock will differ from the MSY of the biomass as a whole. (182) Economists have long asserted that MSY ignores basic fisheries economics principles and the role played by density of population. (183) Further, economists have espoused management of public resources that produced a "socially optimum" level of exploitation and found MSY to be a "socially meaningless" objective. (184) The original criteria in the 1976 Act responded to some of the criticisms of MSY by allowing for adjustment of MSY--higher or lower--in light of social, economic, and ecological factors (185) to achieve an "optimum yield" (186) from the fishery. Because this approach has been so unsuccessful in maintaining or restoring fish stocks, the 1996 SFA amended the Magnuon-Stevens Act to determine optimum yield (OY) on the "basis of maximum sustainable yield, as reduced by any relevant social, economic, or ecological factor." (187) In the face of continually declining fisheries, the SFA changed the definition of OY so that MSY is no longer a starting point for adjusting the OY up or down, but a biologically determined ceiling on OY. (188) This change still failed to address many of the fundamental problems in use of MSY as the benchmark for management. 3. Management Based on Optimum Sustainable Population The following statement of Congressional policy in the MMPA sets out the basic management strategy of the Act: [M]arine mammals ... should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and ... the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population [OSP] keeping in mind the carrying capacity of the habitat. (189) The concept of OSP is unique in resources management. The Act defines OSP as "the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element." (190) NOAA Fisheries regulations define OSP as follows: Optimum sustainable population is a population size which falls within a range from the population level of a given species or stock which is the largest supportable within the ecosystem to the population level that results in maximum net productivity. Maximum net productivity is the greatest net annual increment in population numbers or biomass resulting from additions to the population due to reproduction and/or growth less losses due to natural mortality. (191) OSP does not base management on the optimum utilization of marine mammals. The "take" or "yield" of marine mammals is relevant not in the context of harvesting a resource, but in establishing the circumstances in which any incidental depletion of the resource will be allowed. The potential biological removal level (PBR) is the concept developed to establish the limits of such depletion. PBR is defined generally in the MMPA as "the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its [OSP]." (192) The definition seems straight-forward, but actual calculation of PBR has been difficult to determine and often controversial. OSP has been lauded for incorporating an ecosystem-based approach. Some critics find the current definition ambiguous, however, in attempting to factor in both the maximization of a particular population in the ecosystem and the health of the ecosystem as a whole--concepts that potentially conflict. (193) The NOAA Fisheries regulatory interpretation of OSP has also been criticized as inconsistent with the legislative intent in that it favors maximizing population over health of the ecosystem. (194) Others speculate that the lower limit of OSP is nothing more than MSY. (195) Finally, the variable nature of populations in marine ecosystems contributes to the difficulty of determining the OSP of any given population. (196) If a population is below OSP or the species is listed as endangered or threatened under the ESA, a stock is classified as "depleted." (197) A finding that a stock is depleted has significant consequences. The moratorium generally cannot be waived, nor can a permit be granted, to take or import a depleted species or stock, except for the limited purposes of scientific research, photography, or enhancing the survival or recovery of a species or stock. (198) Native taking of a depleted species or stock may also be restricted. (199) 4. Ecosystem-Based Management a. A Context for Ecosystem-Based Management The history of U.S. fisheries management has largely been a response to crises as one fishery after another collapsed. Management plans have generally concentrated on a single species or closely related group of species as problems became obvious or imminent. This species-by-species approach has contributed to a seeming "domino effect" in the collapse of fisheries. (200) Many commentators have concluded that an ecosystem-based approach to management is the only way to ensure sustainable fisheries in the long term. (201) Such management would require consideration of: all interactions that a target fish stock has with predators, competitors, and prey species; the effects of weather and climate on fisheries biology and ecology; the complex interactions between fishes and their habitat; and the effects of fishing on fish stocks and their habitat. (202) While conceptually appealing, the idea of implementing ecosystem-based management is daunting. Having enough information to consider and understand the complex interactions in an ecosystem seems to be impossible, and management that would take all this into account might be an interminable exercise. (203) The 1999 report to Congress by the Ecosystem Principles Advisory Panel (the Panel), (204) however, concludes that "the approach need not be endlessly complicated." (205) The Panel, created by NOAA Fisheries in response to a Congressional directive in the 1996 SFA, (206) emphasized that "[e]cosystem-based fisheries management does not require that we understand all things about all components of the ecosystem." (207) The Panel proposed ecosystem-based management primarily as a complement to existing fisheries management approaches (208) and proposed a framework of principles, incremental steps toward integrating ecosystem principles into fisheries management, and recommendations and guidelines for developing and implementing Fishery Ecosystem Plans. (209) The Panel found the current scheme of FMPs directed to single species or groups of associated species insufficient to implement an ecosystem management approach, but anticipated that this would continue to be the primary fisheries management tool. (210) Fishery Ecosystem Plans (FEPs) were proposed as the means "to integrate FMPs and include ... ecosystem Principles, Goals, and Policies in a way that will be meaningful." (211) The dynamic nature of ecosystems also demands that FEPs provide for adaptive management. (212) The Panel recommended that an ecosystem-based approach be incrementally incorporated into the management process as data are gathered, training is carried out, and guidelines are developed to ensure compliance with ecosystem principles, goals, and policies. (213) b. NEPA and Ecosystem-Based Management Pending any major changes in the current approach to fisheries management, review of FMPs under the National Environmental Policy Act (NEPA) (214) may prove particularly important in the context of ecosystem-based management. Courts have sometimes been less strict in review of agency application of NEPA in the context of environmental laws. (215) Apparently, the courts reasoned that because of the nature of the laws, agencies were presumably already taking the requisite "hard look" at the environmental effects of their actions and at alternatives. (216) In the case of most amendments to FMPs required by the SFA, NOAA Fisheries regularly prepared environmental assessments (EAs), included only a limited number of alternatives, and then announced its finding that the amendment would have no significant impact (FONSI) and, therefore, required no environmental impact statement (EIS). (217) Because the scope of amendments required by the SFA is so far-reaching and the state of fisheries so precarious, many courts are now less inclined to find that NOAA Fisheries complied with NEPA through a pro forma EA and consideration of limited alternatives that may only include maintaining the status quo and adopting the amendment. (218) Adequate environmental assessment has been ordered in cases concerning essential fish habitat, (219) rebuilding plans for overfished stocks, (220) and amendments to an FMP affecting an endangered species. (221) One court has ordered that the EIS must contain analysis of the impacts of the FMPs "as a whole on the North Pacific ecosystem." (222) The courts' use of NEPA to "jump start" NOAA Fisheries into applying an ecosystem-based approach to management decisions, while justified under NEPA, does not provide a reasoned, incremental approach to ecosystem management based on an adequate framework of data, policies, and guidelines. c. Bycatch and incidental Taking: An Ecosystem-Based Management Issue "Bycatch" is the term used for incidental take in fisheries and refers to "[d]iscarded catch of any living marine resource plus retained incidental catch and unobserved mortality due to a direct encounter with fishing gear." (223) Bycatch can fall into several categories: Regulatory bycatch includes targeted fish that are illegal for fishermen to retain because they are under- or over-sized or the quota has already been exceeded, (224) or non-targeted species that are prohibited by regulation. Economic byeatch may include both targeted and non-targeted legal catch that is discarded because of size or quality to maximize the value of the catch. (225) Species that are killed by incidental interaction with fishing gear (226) are known as collateral mortality (227) and can include not only fish, but also marine mammals, sharks, sea turtles, and seabirds. In many fisheries, bycatch can have serious impacts on the ecosystem. A large proportion of the bycatch is dead when returned to the sea. This discarded material causes behavioral changes in resident scavenger and predator species, leads to collateral mortality of species attracted by the bycatch, and can cause "localized hypoxic or anoxic zones on the seafloor." (228) Species with low reproductive rates such as seabirds, marine mammals, sharks, and sea turtles can suffer "population-level consequences" from collateral mortality. (229) Bycatch increases the uncertainty concerning fishing-related mortality and consequently increases the difficulty of assessment and regulation, and of achieving goals related to preventing overfishing and rebuilding stocks. Because bycatch is by definition random and discarded, determining the level and kinds of bycatch is difficult. This uncertainty makes it difficult to determine optimum yield or when total mortality in a fishery (as opposed to only landings) has surpassed optimum or sustainable yield and is contributing to overfishing. Mortality of juvenile fish as bycatch also creates serious uncertainties in projecting the growth and recovery of fish stocks. (230) The SFA introduced National Standard 9, which requires that FMPs "to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch." (231) Bycatch is defined in the Act to include "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards...." (232) Because bycatch in this context is being considered for fishery management purposes, nonfish bycatch (e.g., sea birds and marine mammals) is not included in the definition. This omission undermines the importance of bycatch in the ecosystem-wide context and discounts the environmental effects of fishing. FMPs were required by 1998 to "establish standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable (233) ... (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided." (234) The efforts of FMCs and NOAA Fisheries to meet this requirement have been severely criticized for delay, (235) and numerous cases have been brought to attempt to enforce this requirement. (236) Admittedly, bycatch determination and mitigation is one of the most difficult issues fisheries managers have had to address, (237) and the specters of Kokechik (238) and the MMPA also loom ominously when exploring the mysteries of bycatch. (239) The MMPA is perhaps the paradigmatic regulation of bycatch or incidental take. The law allows only a few instances of intentional taking of marine mammals, (240) so a large portion of the Act is dedicated to the regulation of those instances in which marine mammals may be taken incidentally in the course of other activities. When the MMPA is applicable, the question of bycatch in fisheries becomes the dominant issue and not a secondary issue to be addressed "to the extent practicable." (241) The specific conflict encountered in taking marine mammals as bycatch in fisheries is discussed supra in Section III.B and demonstrates the legal ramifications of knowing the nature of the incidental catch in a fishery. The court's interpretation of the MMPA in Kokechik led to major changes in the fisheries that have a likelihood of incidentally taking marine mammals, (242) and basically shifted the burden to the exploiters of the resource to establish that fishing activities are not likely to cause an affected marine mammal stock to be reduced below its OSP. Although the MMPA's goal is that incidental kill and serious injury of marine mammals "be reduced to insignificant levels approaching a zero mortality and serious injury rate," (243) the current regulatory scheme focuses on limiting bycatch to ensure that populations maintain or reach OSP. The ESA has an incidental take exception which authorizes the Secretary to permit a taking of endangered species that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." (244) Incidental take permits under the ESA require the Secretary to find that the applicant provided a conservation plan to minimize and mitigate the impacts of the taking and that the taking will not appreciably reduce the species's likelihood of survival and recovery in the wild. (245) The great majority of marine endangered and threatened species, however, are marine mammals or sea turtles. (246) The permitting of the incidental take of endangered marine mammals by commercial fishing and other activities is consequently largely subsumed in the MMPA provisions. 5. Management to Prevent Overexploitation or Extinction and to Restore Depleted Species In addition to limiting the taking and jeopardizing of endangered species, the ESA requires the Secretary to "develop and implement plans for the conservation and survival" of listed species. (247) Unfortunately, almost all courts have found recovery plans not directly enforceable, offering only discretionary guidance. In fact, one court has stated: [T]he development and publication of a recovery plan in and of itself would not [afford] the endangered species any additional protection. The recovery plan presents a guideline for future goals but does not mandate any actions, at any particular time, to obtain those goals. (248) NOAA Fisheries does have authority, however, to issue regulations to prevent takings (249) and "as ... necessary and advisable, to provide for the conservation of [threatened] species." (250) Arguably, direct implementation of recovery plans through these authorities is a logical approach for ensuring recovery of the species. (251) One of the Magnuson-Stevens Act's clearest directives and unmet goals is set out in National Standard 1: FMPs must "prevent overfishing." (252) However, the National Standards, even within Standard 1, incorporate an array of goals that compete with this mandate. The 1996 SFA amendments attempted to strengthen the provisions of the Act not only to prevent further overfishing, but also to require restoration of overfished stocks. The statute defines the terms "overfishing" and "overfished" to mean "a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." (253) Each FMP must contain measures to prevent overfishing and rebuild overfished stocks, including criteria for determining when a fishery is overfished and, if a fishery is nearing an overfished condition or is already overfished, measures to prevent or end overfishing and to rebuild the fishery. (254) The Secretary of Commerce must report annually to Congress and the Councils on the status of fisheries and identify fisheries that are either overfished or are approaching a condition of being overfished. (255) Within one year of receiving notice that a fishery is overfished, the relevant FMC must submit a plan amendment or proposed regulations to end or prevent overfishing and to rebuild the affected stocks. (256) Councils must establish a time period to end overfishing and rebuild the stock that is as "short as possible, taking into account the status and biology [of the stocks], the needs of fishing communities, recommendations of international organizations ... and the interaction of the overfished stock of fish within the marine ecosystem." (257) The time period is not to exceed ten years except where "the biology of the stock, (258) other environmental conditions, or management measures under an international agreement ... dictate otherwise." (259) If a Council does not submit a plan or regulations within one year to stop overfishing or to rebuild the affected stocks, the Secretary is required to prepare a plan amendment and regulations to stop overfishing and rebuild the stocks within nine months. (260) Some courts are finding a tension between the mandate to set quotas at a level that will prevent overfishing and the requirement, discussed infra, to alleviate economic impacts on fishing communities. (261) While some critics have found that the Councils have been too risk averse in setting quotas that will prevent overfishing, (262) courts have found that NOAA Fisheries must adopt quotas with at least a 50% probability of reaching targets that will prevent overfishing. In Natural Resources Defense Council, Inc. v. Daley,(263) the Court of Appeals found that a quota with an 18% likelihood of meeting targets was insufficient to meet the mandate to prevent overfishing. (264) Given the history and uncertainties of fisheries management, even a quota that provides a 50% probability of achieving the goal of preventing overfishing may not provide an effective measure to ensure restoration of a deplenished species. B. Habitat Protection It is axiomatic that a species cannot prosper if the habitat necessary for important parts of its life cycle is lost. An early recognition of this in federal protected species management is the ESA requirement of designation of critical habitat for endangered species (265) and protection of critical habitat in the case of federal actions and federally authorized activities. (266) Critical habitat was defined by 1978 amendments to the ESA to include not only areas occupied by the species at the time of listing and essential to conservation of the species, but also areas outside the occupied area "essential for the conservation of the species." (267) The ESA anticipates that critical habitat will be designated at the time of the listing of a species, but the Secretary's duty incorporates a great deal of discretion in the power to designate critical habitat "to the maximum extent prudent and determinable." (268) The ESA does not define "prudent" or "determinable," but does require the Secretary to make the determination based on the "best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." (269) In Sierra Club v. U.S. Fish & Wildlife Service, (270) the court noted that through frequent use of the "not prudent" exception, FWS and NOAA Fisheries (the Services) disregarded the "intent of Congress that a 'not prudent' finding regarding critical habitat would only occur under 'rare' or 'limited' circumstances. In practice, the Services have inverted this intent, rendering critical habitat designation the exception and not the rule." (271) Habitat protection considerations have also been incorporated into fishery management. In the 1996 SFA amendments to the Magnuson-Stevens Act, (272) Congress concluded: One of the greatest long-term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats. Habitat considerations should receive increased attention for the conservation and management of fishery resources of the United States. (273) The SFA introduced the concept of Essential Fish Habitat (EFH), (274) which is defined as "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." (275) FMPs must now "describe and identify essential fish habitat for the fishery[,] minimize to the extent practicable adverse effects on such habitat caused by fishing, (276) and identify other actions to encourage the conservation and enhancement of such habitat...." (277) The threshold issue simply determining what areas should be identified as EFH--has been a difficult task. Distinguishing "essential" habitat from "nonessential" habitat has been complicated by the insufficiency of information available and the imprecision of Congress's direction. The overly broad definition in the SFA could lead to the entire EEZ being designated EFH, and EFHs have been established for virtually entire ranges of a fishery based generally on distributions and density of stock population. (278) The usefulness of EFH as a management tool is compromised if truly essential habitat cannot be ascertained or distinguished. If the Councils are to recommend effective measures to address adverse effects from fishing that will not be subject to drawn-out challenges in legal and political fora, the measures should be addressed to areas that can be justified as "essential." A step in this direction is NOAA Fisheries's guidance for the Councils to encourage identification of "habitat areas of particular concern" (HAPC) that perform important ecological functions, are particularly vulnerable to degradation, and are likely to be stressed by human activities. (279) This approach still suffers from problems of lack of information, but provides a clearer focus for conservation. This approach may also provide a tool for moving toward ecosystem management. One step toward incrementally implementing ecosystem management is to identify HAPCs of an ecosystem-wide significance, rather than designation on a fishery-by-fishery basis. Unlike ESA critical habitat designation, the designation of EFH does not take the economic impact of the designation into account. The SFA provides, however, that FMPs must minimize adverse effects on EFH from fishing "to the extent practicable." (280) NOAA Fisheries has also provided guidance to the Councils in implementing the requirement to minimize fishing impacts on EFH. In relevant part, the guidelines state: (ii) ... Councils must act to prevent, mitigate, or minimize any adverse effects from fishing, to the extent practicable, if there is evidence that a fishing activity adversely affects EFH in a manner that is more than minimal and not temporary in nature.... (iii) In determining whether it is practicable to minimize an adverse effect from fishing, Councils should consider the nature and extent of the adverse effect on EFH and the long and short-term costs and benefits of potential management measures to EFH, associated fisheries, and the nation, consistent with national standard 7 [i.e., minimizing costs and avoiding unnecessary duplication]. (281) In short, the Councils' obligation to minimize adverse effects is required by the guidelines to consider practicality, including economic costs and benefits. (282) Management measures that Councils may adopt to control the adverse effects of fishing on EFH include, but are not limited to: seasonal and area restrictions on fishing equipment, gear modifications or prohibitions, closures of areas at certain times, designation of zones as marine protected areas, and limits on harvest of prey species and species that provide habitat for other species assemblages or communities. (283) The Magnuson-Stevens Act does not specifically address the more general concept of marine protected areas (MPAs). The development of a national system of MPAs was encouraged by President Clinton's Executive Order 13158 of May 26, 2000, (284) which defined an MPA as "any area of the marine environment that has been reserved by Federal, State, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein." Many types of MPAs are certainly within the scope of management tools currently authorized for fishery management plans and are used regularly by Councils. Certain EFH designations may generally fall within the parameters for an MPA. EFH designation has turned out to be quite controversial because of its potential economic impact on fishermen. Much of the controversy surrounding EFH, however, is the concern that designation will inevitably lead to de facto creation of highly restrictive MPAs and cause vast areas of the EEZ to be set aside as marine "wilderness." Marine reserves are defined in the Pew Oceans Commission Report as follows: A marine reserve is a type of marine protected area in which all extractive, additive, or ecologically destructive human activities are prohibited on a lasting basis, except as necessary for evaluation of reserve effectiveness and appropriate research. Destructive human activities include, but are not limited to, those that alter habitats, harm or kill organisms, or change the dynamics of the ecosystem. (285) Such reserves have been effective in restoring ecosystems, fish populations, and species diversity and are viewed as the means to "increase ecosystem resilience by protecting a portion of the ecosystem, providing marine habitats and species a safe haven in which to flourish." (286) The Pew Commission and numerous commentators recommend the establishment of a national system of marine reserves as an indispensable element to ensure the long-term health of ocean ecosystems. (287) C. Consultation in Living Marine Resources Management Many issues and actions that affect the management of marine living resources are governed by other statutes and other government entities. Without means for coordination and consultation between and among government agencies, activities may go forward with little or no consideration of the effects on specific marine species or marine ecosystems. Consultation can serve a number of purposes. First, it may be a mechanism for ensuring informed decision making. It may also establish substantive limits on decisions and actions. Finally, consultation may provide transparency, requiring agencies to justify publicly their rejection of an expert agency's recommendations to protect species or habitat. 1. Section 7 Consultation Under the ESA Section 7 of the ESA requires all federal agencies to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence" or "result in the destruction or adverse modification of habitat" critical to listed species. (288) To accomplish this in regard to actions potentially affecting marine endangered or threatened species, an agency must consult with the Secretary of Commerce. In the case of approval of FMPs, the Secretary of Commerce consults with himself. (289) Functionally, NOAA Fisheries's Office of Sustainable Fisheries plays the role of "action agency," and NOAA Fisheries's Office of Protected Species plays that of "expert agency." An action agency may determine through a biological assessment or informal consultation with the expert agency that "no jeopardy" is likely to occur to listed species or their critical habitat. (290) If, however, the action agency cannot ensure that the action is unlikely to jeopardize a listed species, formal consultation must be pursued. (291) At the conclusion of the formal consultation process, the Secretary must provide a biological opinion, (292) which provides a detailed discussion of the effects of the action on the listed species or critical habitat and provides the Secretary's opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. (293) If jeopardy or adverse modification is found, the opinion must also provide "reasonable and prudent alternatives" which may allow the action to go forward without causing jeopardy or adverse modification. (294) The biological opinion must be based on the best scientific and commercial data available. (295) In Greenpeace Foundation v. Mineta, (296) the district court addressed issues related to the lack of adequate information in the consultation process to determine whether a species is likely to be jeopardized or whether habitat will be adversely affected. The court held that "when an agency concludes after consultation that it cannot insure that the proposed action will not result in jeopardy, and yet proceeds to implement such action, the agency has flouted the plain requirements of Section 7." (297) The court continued, "NOAA Fisheries cannot speculate that no jeopardy to monk seals or adverse modification of their critical habitat will occur because it lacks enough information regarding the impact of the fishery on seals." (298) At least two lines of cases (concerning monk seals and Steller sea lions (Eumetopias jubatus)) demonstrate that the courts are willing to review closely the scientific bases and methodologies used by NOAA Fisheries to justify policy decisions in biological assessments and the consultation process (with itself). In both the case of Hawaiian lobster fisheries within critical habitat of monk seals and the Alaskan groundfish trawl fishery within critical habitat of Steller sea lions, courts have recently enjoined the fisheries until NOAA Fisheries completed adequate consultation and biological opinions. In Mineta, the court criticized NOAA Fisheries's consultation process and biological opinion (and implicitly questioned NOAA Fisheries's priorities and the integrity of the process): The biological opinion reasoned that implementing the Crustacean FMP was preferable to taking no action because the FMP would regulate the fishing industry, whereas the fishery would operate and expand without restriction in the absence of an FMP.... [NOAA Fisheries] constructs a false dichotomy. If conservation of the monk seal is a high priority objective for [NOAA Fisheries], an unconsidered alternative would have been to regulate lobster fishing by banning it until more information regarding the impacts of lobster fishing on listed species was available. (299) .... ... If, in the 1981 opinion [NOAA Fisheries] was uncertain of the impact of the FMP because it knew too little about the monk seal diet, by 1996 it was emboldened by its ignorance to draw definitive conclusions about the impact. [NOAA Fisheries] reiterated in the 1996 opinion that the available information still had not clarified the importance of lobster in the monk seal diet; yet, in a departure from its conclusion in 1981, [NOAA Fisheries] this time concluded that no jeopardy to the monk seal would result. [NOAA Fisheries] arrived at this conclusion despite the fact that the fishery operated up to the 10- and 20-fathom isobath areas of ... the critical habitat of the monk seal.... (300) In Greenpeace v. National Marine Fisheries Service, (301) the court found that the proper scope of the biological opinion is crucial to the adequacy of the opinion. The biological opinion must be "coextensive" with the agency action and address all aspects of the agency action, (302) In particular, the case held that FMPs in their entirety require "a comprehensive biological opinion that addresses the full scope" of all groundfish regulations and their effects on the Steller sea lion. (303) 2. Consultation on Actions That Affect EFH Direct fishing impact on habitat is only one cause of marine habitat loss or destruction. Other activities that can adversely affect EFH include coastal development; dredging and deposition of fill; nonpoint source pollution and sedimentation; discharges, including waste water and thermal discharges; oil and gas exploration and exploitation; mining; introduction of hazardous materials or exotic species; and aquatic habitat conversion. (304) None of these activities are within the scope or jurisdiction of the Magnuson-Stevens Act, the Secretary, or the Councils, but they have significant and sometimes irreversible effects on EFH. The Act provides, however, that "[e]ach Federal agency shall consult with the Secretary with respect to any action ... by such agency that may adversely affect any essential fish habitat identified under this Act." (305) The EFH consultation provisions do not create any positive protections for the areas identified, but perform important functions of information sharing and transparency. (306) The Magnuson-Stevens Act imposes two requirements on the Secretary to facilitate protection of EFHs identified by the Councils. First, the Secretary must provide other federal agencies with information that will further the conservation and enhancement of essential fish habitat. (307) Second, the Secretary must create an interagency consultation process by which federal agencies can consult with him regarding actions they propose to authorize, hand, or undertake "that may adversely affect any essential fish habitat identified under this Act." (308) Councils may make recommendations to the Secretary and to federal or state agencies on actions that a Council believes may affect the "habitat, including essential fish habitat, of a fishery resource under their authority." (309) If the Secretary receives information from a Council or other agency, or determines from other sources that a proposed or undertaken action by a federal or state agency threatens an identified EFH, the Secretary is required to recommend measures to the responsible agency that can be taken to conserve that habitat. (310) A federal agency undertaking or proposing the action is not required to follow the recommendations, but it must provide a detailed response in writing to the Council and the Secretary explaining its reasons for not following the recommendations and describing the measures it will take to avoid, mitigate, or offset the impact of the activity on the EFH. (311) Unlike federal agencies, state agencies are under no obligation to consult with the Secretary nor are they required to respond to comments of the Secretary or Councils. This is a serious gap because estuarine and coastal habitats are often extremely significant, and coastal activities and development can also have effects on habitats offshore. Successful implementation of the consultation process is complicated by the current unfocused definition and expansive designations of EFH. It simply makes the scope of activities that "may adversely affect" an EFH so expansive that implementation appears arbitrary and backlash to the process is likely to occur. For example, broad, descriptive, general designations of EFH do not provide permitting agencies or permit applicants notice of whether particular activities are likely to affect EFH if clear geographic boundaries to the areas are not identified. The EFH provisions have the potential to significantly increase project costs and to spawn a whole new consulting industry to determine whether a permit applicant's activity is within EFH or will adversely affect an EFH and to propose and carry out mitigative measures. (312) Current regulations on the consultation process focus on the relations between the consulting agency and NOAA Fisheries and do not acknowledge the permit applicant as the primarily affected participant in actions "authorized" by the federal agency. (313) Unlike the Coastal Zone Management Act (CZMA), (314) which provides for a Secretarial "appeal" process by an applicant if a permit is denied by a federal agency for inconsistency with a state coastal program, (315) neither the Magnuson-Stevens Act nor the regulations provide a comparable review process for a permit applicant who is denied a permit because of adverse effects on EFH. D. Decision Making and the Nature of Resource User (316) Interests 1. Decision Making and the Role of Resource Users Under the Magnuson-Stevens Act Unlike the MMPA and the ESA, which are based on traditional models of technocratic, centralized regulation, the Magnuson-Stevens Act created a user-oriented, decentralized model of resource management that was perhaps ahead of its time. The devolution of authority to eight regional management councils was intended to acknowledge and accommodate regional differences in the resource and the fishing industry. (317) The structure of the Councils also maintained a substantial role for the states in recognition of their traditional role in fisheries management. (318) The FMCs include the regional director of NOAA Fisheries and state fishery management officers, as well as individuals from each state who are recommended by state governors and appointed by the Secretary of Commerce. (319) The appointed council members, who constitute more than half of the membership, must "be individuals, who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographic area concerned." (320) FMCs have the primary responsibility for preparing fishery management plans for EEZ fisheries in conformance with the ten National Standards for fishery conservation and management (321) and the required and optional elements set out in the Act. (322) The FMCs not only establish management policies for how, when, where, and how many fish are caught, but also allocate the catch among users. Management plans and plan amendments developed by the FMCs must be submitted to the Secretary, who must approve a plan if it is consistent with applicable law. (323) The Secretary has independent authority to prepare an FMP only in limited circumstances. (324) When a Council does not submit a plan for rebuilding an overfished fishery within one year of notification by the Secretary of the overfished status of the fishery, the Secretary is required to prepare a plan. (325) The Secretary also has discretion to prepare (i.e., "may prepare") an FMP when a Council fails to develop and submit a plan for a fishery requiring management "after a reasonable period" and when a Council fails to resubmit a revised plan or amendment after the Secretary has disapproved or partially disapproved the plan or amendment. (326) The regional council system is perhaps the most criticized part of the Magnuson-Stevens Act. At the root of the issue is the widely held perception that a person with a vested financial interest can never be impartial. Because the majority of members on most of the Councils are commercial fishermen, (327) many view the council system as industry capture of fisheries management, destined to value short-term profits over sustainability of the fisheries. (328) One commentator has referred to the council system as a "political tragedy of the commons," because the industry arguably has captured not only the regulatory process, but also the regulators and legislative process. (329) As a "concentrated minority," fishermen are able to exert disproportionate political force in the regulatory process, and their "geographic concentration affords them the special benefit of being an indispensable constituency to at least some local, state, and federal officials.... It is no surprise that Congressional oversight of federal fishing regulation has for many years been controlled by representatives from districts or states that include fishing ports." (330) The conflicting goals and purposes of the Magnuson-Stevens Act, along with the fact that prior to 1996 the Act imposed few nondiscretionary conservation requirements, (331) often have left NOAA Fisheries vulnerable to industry and political pressure, even where it may have had authority to act. (332) The FMCs have been found to be an "integral part" of the federal agency and subject to laws applying to federal agencies, (333) but the Magnuson-Stevens Act exempts FMCs from application of the federal law involving financial conflicts of interest that apply to other agencies. (334) Congress has taken some steps to address the issue of direct conflicts of interest by incorporating financial disclosure (335) and recusal provisions (336) into the Act. Even President Clinton commented, however, on the inadequacy of these provisions. (337) The lack of representation on the FMCs of broader public interests contributes to the view that the Council scheme is flawed. Commercial interests hold a large majority of the appointed seats on the Councils, (338) and recreational interests hold most of the other appointed seats. In 1999, for example, "only one of the 71 appointed members of [the FMCs] represented the 'conservation community." (339) The Magnuson-Stevens Act provides that the Federal Advisory Committee Act, (340) which requires balanced membership "in terms of views represented," (341) does not apply to FMCs. (342) The Act does require the Secretary in making appointments to ensure a "fair and balanced apportionment ... of the active participants in the commercial and recreational fisheries ..." (343) but does not require the Secretary to ensure participation of marine ecologists, natural resource managers, environmental interests, or others more broadly representative of the public's interest in the resources. (344) The Secretary is limited in his ability to diversify the membership of the councils. The regulations setting out the categories of qualified individuals are quite broad, including not only resource users, processors, and marketers, but also people with experience related to marine resources or those involved in consumer education or consumer protection, such as "teaching, journalism, writing, consulting, practicing law, or researching." (345) Appointments can only be made, however, from a list of at least three qualified persons submitted by a governor. (346) The Secretary may find an individual unqualified but may not substitute candidates on the list. (347) The Magnuson-Stevens Act further instructs governors not to submit a person's name unless the governor has "to the extent practicable, first consulted with representatives of the commercial and recreational fishing interests of the State regarding [the person]." (348) 2. Take Reduction Teams and Reduction of Incidental Catch of Marine Mammals The 1994 amendments to the MMPA created a process for developing strategies to minimize and ultimately eliminate marine mammal mortality incidental to commercial fishing. (349) Initially, the Secretaries of Commerce and Interior were required to prepare stock assessments on all marine mammal stocks that occur in U.S. waters. (350) The assessments categorize each stock as either strategic or non-strategic, i.e., at a level where human-caused mortality and serious injury is not likely to cause the stock to be reduced below its OSP. (351) Based on the assessments of stocks, the determinations of OSP and PBR, and the information developed on the effects of fisheries, the Secretary is required to develop and implement take reduction plans (TRPs) for fisheries that frequently or occasionally interact with strategic stocks of marine mammals to assist in their recovery or to prevent their depletion. (352) The plans are intended to reduce incidental take levels to below the PBR level for these stocks within six months and to insignificant levels approaching zero within five years. (353) In recognition of the likelihood that there would be insufficient funding or data available to develop and implement take reduction plans immediately for all strategic marine mammal stocks, the amendments allow NOAA Fisheries to prioritize the development of plans to assure that stocks of the most concern (354) are addressed in a timely manner. (355) The MMPA requires the Secretary to create take reduction teams (TRTs) to develop draft TRPs for strategic stocks and authorizes the Secretary to establish TRTs for other stocks that interact with fisheries with a high incidence of mortality and serious injury to marine mammals. (353) The TRTs include individuals with expertise in the conservation and biology of marine mammals as well as individuals who are knowledgeable concerning fishing practices that harm marine mammals and represent "to the maximum extent practicable, ... an equitable balance among representatives of resource user interests and nonuser interests." (357) Among the potential members of TRTs identified in the Act are representatives of federal agencies, coastal states, fishery management councils, environmental groups, Native Alaskan and Indian tribal organizations, and commercial and recreational fishermen, as well as academics, scientists, and "others as the Secretary deems appropriate." (358) The Act does not proscribe the number of members or seats on TRTs. (359) Initially, the Secretary created five TRTs (360) and currently six TRTs have been convened. (361) TRTs are given a rather limited time only six months--to submit a draft plan to the Secretary for stocks for which "human-caused mortality and serious injury from a strategic stock is estimated to be equal to or greater than the potential biological removal rate. (362) The Secretary is to take the draft plan "into consideration" in publishing a final plan and implementing regulations. (363) The Secretary is directed to publish the plan and proposed implementing regulations in the Federal Register within sixty days of submission, including any explanations of changes the Secretary proposes to the draft plan. (364) The Secretary must publish the final plan within sixty days of the close of the comment period for the proposed TRP and its implementing regulations. (365) The Act envisions the TRTs continuing to meet regularly to monitor implementation of the plan until the objectives of the plan have been met and to meet every six months to review implementation. (366) TRTs are distinctly different from FMCs. (367) The Secretary has discretion about the size and membership of the TRTs. The Act directs the Secretary to ensure that both the interests of resource users and nonusers are represented in the membership. (368) The teams are on strict schedules to develop plans for the relevant strategic stocks identified by NOAA Fisheries; if no plan is proposed in six months, the Secretary must publish a proposed plan within eight months of the convening of the TRT. (369) The teams develop plans by consensus with the aid of facilitators; if consensus cannot be reached, the teams advise the Secretary of the views of participants and the possibilities considered. (370) Finally, the plans developed are fundamentally advisory--the Secretary is not bound to implement the recommendations of the TRT (although he must explain why he modifies or rejects the team's proposal). The Secretary has exercised some discretion in implementing the TRPs. The Secretary has authority to implement the plan through MMPA regulations. Specifically, "the Secretary may, where necessary to implement a take reduction plan," promulgate regulations including, but not limited to, setting incidental fishery-specific mortality limits on commercial fisheries, restricting commercial fishing by time or areas, and requiring the use of alternative fishing gear. (371) Actions necessary to achieve the goals of the TRPs may also be addressed in fishery management plans under the Magnuson-Stevens Act. Neither the MMPA provisions nor the Magnuson-Stevens Act, however, provides any specific mechanism for coordinating TRPs with FMPs. (372) implementing TRPs through the Magnuson-Stevens Act has been criticized by TRT members and has arguably contributed to the fact that NOAA Fisheries has not implemented a single take reduction plan within the statutory time frame. (373) An evaluation of the TRT negotiation process found that a large majority (86%) of the team members who participated in the survey thought that the TRT negotiations were an effective process for marine resource management decision making. (374) Nevertheless, 60% of the participants reported that they were not satisfied with the results of the negotiation. (375) The evaluators opined that this divergence in the survey results reflected the postnegotiation perceptions of the team members who were aware of whether the TRTs' plans and recommendations were actually adopted by NOAA Fisheries and who were frustrated by the failure to "implement the take reduction plans within the statutorily required time frames." (376) For the process to work well in the future, the participants will need to have confidence that their recommendations are being taken seriously and that NOAA Fisheries will actively participate in the negotiations and effectively implement the plans. (377) 3. Preserving Fishing Communities Few occupations capture the American spirit and imagination like fishing. From Moby Dick (378) to The Perfect Storm, (379) fishermen are presented as dauntless, independent, (380) romantic characters who are as indispensable a part of the American culture and landscape as the pioneering, small family farmer. Like the small family farmer, too, fishermen have had a great deal of governmental attention to try to preserve their way of life in a changing society. Since the 1990 amendments to the Magnuson-Stevens Act, the contents of an FMP have been required to include a "fishery impact statement" to "assess, specify, and describe the likely effects ... [on] participants in the fisheries and fishing communities affected by the plan or amendment...." (381) The protection of fishing communities was raised to a governing standard in 1996. National Standard 8 was added to the Magnuson-Stevens Act by the SFA and provides that to the extent "consistent with the conservation requirements" of the Act, management measures must take into account the importance of the resources to fishing communities and, "to the extent practicable," to minimize the adverse economic impact on these communities and to sustain participation by the communities in the fisheries. (382) In Natural Resources Defense Council v. Daley, however, the Court of Appeals emphasized that the duty to prevent overfishing under Standard 1 takes precedence over Standard 8. (383) Regulations provide that the effect of Standard 8 is that when two alternatives achieve similar conservation goals, the agency will choose the alternative that better achieves Standard 8 goals as well. (384) "Fishing community" is defined in the SFA as "a community which is substantially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel owners, operators, and crew and United States fish processors that are based in such community." (385) In application, this definition has left wide latitude for interpretation of the term "community" and led to litigation over the meaning of the term. (386) The primary issue is whether a "community" should be limited to a shared geographic place, rather than considering shared interests. (387) Regulations adopted in 1998 to implement Standard 8 take a broad view of the members of a fishing community while focusing on a community as a "place." The regulations define "fishing communities" as follows: [A] community that is substantially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel owners, operators, and crew, and fish processors that are based in such communities. A fishing community is a social or economic group whose members reside in a specific location and share a common dependency on commercial, recreational, or subsistence fishing or on directly related fisheries-dependent services and industries (for example, boatyards, ice suppliers, tackle shops). (388) NOAA Fisheries has interpreted fishing communities to include both commercial and recreational communities. (389) The notion of "community" has not been consistently interpreted or applied. In North Carolina Fisheries Ass'n v. Daley, (390) the federal district court rejected the agency's analysis of the impacts that "considered the entire state of North Carolina as one fishing community," (391) and found that "analysis of impacts on fishing communities should have been grounded in a geographical context." (392) In Ace Lobster Co. v. Evans, (393) however, the court found that the Secretary had complied with Standard 8 even though NOAA Fisheries did not make an individualized assessment of impact on Rhode Island, the state with the smallest number of lobster vessels. (394) In Little Bay Lobster Co. v. Evans, (395) the court noted that there was "no authority for the proposition that National Standard 8 required NMFS to conduct, and document, an analysis of the potential impacts of each element of the management plan on each potentially impacted fishing community rather than conducting an analysis of the impact of the plan as a whole." (396) The Regulatory Flexibility Act (RFA) (397) perhaps provides more direct consideration of the effects of fisheries regulation on individual fishermen and businesses. Because such a large proportion of U.S. commercial fisheries would fall within the category of "small business," the analysis required under the RFA is directly related to regulations implementing Standard 8, the fishery impact statement (FIS) and individual FMPs. The purpose of the RFA is to assure that agencies take into account the disproportionate impacts regulations may have on small businesses and to require agencies to consider less burdensome alternatives if the impact on small businesses is significant. (398) Agencies must explain the bases of their actions and ensure serious consideration of alternatives that minimize significant economic impacts on small entities. (399) The RFA is primarily procedural; it does not require the agency to take specific substantive measures. In fact, the RFA states that it does "not alter in any manner standards otherwise applicable by law to agency action." (400) Neither Standard 8 nor the RFA provide fishermen or fishing communities a great deal of substantive protection, but the provisions ensure their plight continues to be highlighted to the FMCs, NOAA Fisheries, and Congress. The bottom line, though, is that fisheries must first have fish. In upholding a management plan for spiny dogfish that would potentially shut down the fishery for five years, a sympathetic, but resolute, Judge Harrington quoted the legislative history of the SFA: [A]t the present, efforts to halt overfishing, restore the depleted resource, and conserve habitats will decrease revenues to fishermen and drive some out of business. The industry will have to sustain some losses in the short term if it is to remain viable in the long term. (401) 4. Native Americans: Subsistence Fishing and Tribal Rights The MMPA contains an exemption from the moratorium for takings of marine mammals by Native Alaskans (Indian, Aleut, or Eskimo), unless the Secretary imposes limits on the harvest of a species determined to be depleted. (402) The exemption only applies if the taking: (1) is for subsistence purposes; or (2) is done for purposes of creating and selling authentic native articles of handicrafts and clothing ...; and (3) in each case, is not accomplished in a wasteful manner. (403) The ESA contains an almost identical provision to exempt certain Native Alaskans. (404) The number of protected species taken for subsistence purposes (405) is not insignificant (406) and in some cases may be contributing to the decline of populations. For example, Native Alaskan harvesting of the Cook Inlet beluga whales recently led to significant decline of a distinct population of Cook Inlet whales. (407) The Secretary possesses authority under the MMPA to regulate the Native Alaskan take of depleted species (409) and under the ESA to regulate take when "such taking materially and negatively affects the threatened or endangered species." (409) In addition, the Native Alaskan take of endangered and threatened species arguably is subject to regulation by the state of Alaska, (410) and the management of nondepleted marine mammals is beginning to be addressed through cooperative management. (411) The 1994 MMPA amendments clarified the authority of the Secretary to enter into agreements with Alaska Native organizations to conserve marine mammals (412) and facilitate the: (1) collecting and analyzing data on marine mammal populations; (2) monitoring the harvest of marine mammals for subsistence use; (3) participating in marine mammal research conducted by the Federal Government, States, academic institutions, and private organizations; and (4) developing marine mammal co-management structures with Federal and State agencies. (143) These provisions allow for cooperation to gather and share information concerning subsistence harvesting and provide research opportunities and data on the animals harvested that will contribute to better assessments of stocks and to a more complete information base about populations and taking of marine mammals. The most important element of this section for proactive management purposes is the authorization for comanagement agreements. Through comanagement agreements, the Secretary can work with Alaska Native organizations to manage subsistence take of nondepleted stocks to ensure the continued health of the stock and the ecosystem. A number of comanagement agreements have been concluded, and a Memorandum of Agreement has been concluded with the Indigenous People's Council for Marine Mammals to provide a framework for development of additional comanagement agreements. (414) One drawback with the existing provision is that compliance with any harvest limit established under such a cooperative agreement is voluntary. NOAA Fisheries, FWS, the Marine Mammal Commission, and Alaska Native groups have recommended that the provisions for development and implementation of comanagement regimes be expanded in the MMPA to make them binding on subsistence hunters. The Magnuson-Stevens Act does not exempt Alaska Natives or other Native Americans from fishery management regulation. The Act does require, however, that FMPs contain a description of the nature and extent of indian treaty fishing rights in a fishery (415) and incorporate relevant Indian fishing rights. (416) A series of U.S. Supreme Court cases have interpreted certain treaties in the mid-1850s to give Northwest Indian tribes the right to take fish, whales, and seals "at usual and accustomed [U & A] grounds" in common with other U.S. citizens. (417) Tribes are not entitled to a specific allocation under these treaties, but a right to a fair share: up to fifty percent of the fishery. (418) E. State and Federal Jurisdictional Issues 1. State Jurisdiction Under the Magnuson-Stevens Act Issues of federalism and jurisdiction are significantly different in the case of fishery management than in the case of the MMPA and the ESA. Because the states historically had managed fisheries both within and outside state waters, because a significant proportion of fisheries resources occur within state waters, and because management decisions have serious local economic and social impacts, states were reticent to relinquish authority for fisheries management to the federal government. The Magnuson-Stevens Act retained the jurisdiction of states to regulate fisheries within their state waters, (419) allowing for federal intervention only if the Secretary finds that state action or inaction with regard to a fishery within state waters will "substantially and adversely affect" an FMP covering a fishery that is predominately within the EEZ. (420) States also continued to have jurisdiction over vessels "registered under the laws of such state," (421) even in the EEZ beyond state waters. The Act prohibited the direct or indirect regulation in the EEZ by the state of a vessel not registered in that state. (422) The provision lacked important definitions and left major questions about preemption and the continuing scope of state authority after Councils began developing and implementing FMPs. The SFA substantially amended the section, (423) but still left major issues unresolved. Because the original provisions of the Act did not define the term "registered," states were left with apparent discretion concerning its meaning. Several courts have rejected the interpretation that the term refers to federal licensing and enrollment. (424) States have applied creative interpretations that substantially expanded the definition beyond citizens of the state and vessels which are homeported or principally used in that state. Perhaps the biggest problem with this result is that a vessel fishing in the EEZ might be concurrently "registered" under the definitions of several states with different, possibly conflicting, regulations. The SFA amended the section to provide: (3) A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances: (A) The fishing vessel is registered under the laws of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or (ii) the State's laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating. (425) Although Congress introduced language to define "registered," no definition was included in the SFA as enacted. The 1996 provisions attempted to address the question of when states would be preempted by federal fishery management plans from regulating registered vessels in the EEZ. The SFA continued to allow substantial confusion though by not entirely preempting state regulation when a federal plan and regulations were in place, states can stun regulate state-registered vessels if no federal FMP is in place or if their laws and regulations are "consistent" with "the fishery management plan and applicable Federal fishing regulations." (426) Further, the state can regulate other fishing vessels beyond state waters if the Secretary delegates management to a state with laws and regulations consistent with the applicable federal FMP. (427) Congress failed to define the significant term "consistent" in both cases. (428) 2. State Jurisdiction Under the MMPA and ESA The MMPA provides that "[n]o State may enforce ... any State law or regulation relating to the taking of any species.., of marine mammal within the State unless the Secretary has transferred authority for the conservation and management of that species ... to the State." (429) In spite of the clear preemption of state law, several states and territories have passed laws regulating taking of marine mammals and purport to require approval of permits through the federal consistency provision of the CZMA. (430) It would seem that this use of the requirement that federal actions be consistent with approved state coastal management programs to the maximum extent practicable is not within the intent of the CZMA or the MMPA. There is also a question of the extent to which the MMPA preempts state regulation of state-owned reserves or wildlife refuges. In State v. Anariak, (431) the court held that the MMPA did not preempt a state law prohibiting the discharge of firearms in a state walrus sanctuary. (432) The court held that the Act was not intended to preempt the state from regulating state lands, though a forceful dissent argued that the MMPA is broad and unambiguous in its intent to cover "any State law or regulation." (433) The MMPA sets out the requirements for states to have management authority delegated for a species. (434) The process is cumbersome, involving lengthy, complex procedures including a formal public hearing. Only two states have ever applied for transfer of management authority, neither successfully. (435) Despite revisions in 1981 to simplify transfer of authority to the states, the current structure is still not conducive to Congress's intent to encourage delegation to the states. The ESA, enacted a year after the MMPA, provides more opportunity for state participation. The ESA expressly provides for states to enforce laws pertaining to taking of endangered or threatened species that are more restrictive than the ESA permit or exemption requirements. (436) Unlike the MMPA, the ESA explicitly fosters federal-state cooperation. The ESA provides that the "the Secretary shall cooperate to the maximum extent practicable with the States." (437) Upon finding that a state's program meets the requirements of the ESA for "an adequate and active program for the conservation of endangered species and threatened species," the Secretary is required to enter into a cooperative management agreement with the state. (438) No complex procedures, rulemaking, or hearings are required. V. A PROPOSED FRAMEWORK FOR MANAGEMENT OF MARINE LIVING RESOURCES The foregoing discussion of the current approaches to marine living resources management demonstrates that the current regimes do not individually or cumulatively ensure the health of marine ecosystems and may even be contributing to the continued decline of the health of the marine environment because of the species-by-species approach and conflicts and inconsistencies in management goals. This Article cannot attempt to propose a complete legislative scheme for living marine resources management, but rather proposes a framework of principles for a more comprehensive approach to marine living resources management. A. An Ecosystem-Based Approach to Management 1. All Marine Living Resources Should Be Addressed Under a Single Regime Based On Maintaining the Health of the Ecosystem. Both exploited and protected species should he managed through a comprehensive system that takes an ecosystem-based approach to decisions concerning the level of removal allowed for species. Species should be categorized as exploitable or protected. Species within either category that are determined to be endangered, threatened, or at a diminished population level inconsistent with a "balanced, integrated, adaptive community," (439) should be subject to enforceable recovery plans. Particular attention should be paid to emerging fisheries, in terms of new dominant species populations which may indicate long-term and potentially unalterable changes in the ecosystem that affect recovery of other species. Close attention should also be paid to ensure that exploitation "down the food web" does not lead to additional species becoming overexploited and further damaging the ecosystem. The regime should provide for adaptive management based on the best scientific evidence with a risk averse or precautionary approach applied to decision making when data are incomplete. (440) 2. Ecosystem Boundaries Are Generally Consistent with Current Regional Management Institutions. The report of the Ecosystems Principles Advisory Panel noted that "[m]arine ecosystem boundaries are generally open, but bathymetric and other oceanographic features create biological discontinuities of shape gradients that allow marine ecosystems to be defined." (441) The Panel found that current fishery management regions "reasonably correspond" to these physical features that define ecosystems. (442) 3. Ecosystem Management Plans (EMPs) for Living Marine Resources (LMR) Should Be Developed Following the Recommendations of the Ecosystems Principles Advisory Panel. (443) EMPs should be developed along the principles recommended by the Advisory Panel for fishery ecosystem plans. The basic elements of the ecosystem-based plans are summarized by the Advisory Panel in the following requirements: 1. Delineate the geographic extent of the ecosystem. (444) 2. Develop a conceptual model of the food web. (445) 3. Describe the habitat needs of plants and animals of the "significant food web" at different stages of their lives and assess how this is considered in management. (446) 4. Determine the allowable take ("total removal") of a species in relation to "standing biomass, production, optimum yield, natural mortality and trophic structure." (447) 5. Assess uncertainty and include buffers against uncertainty. (448) 6. Identify indices of ecosystem health as management targets. (449) 7. Incorporate past long-term monitoring data and future planning for monitoring. (450) 8. Identify "ecological, human, and institutional elements" outside fishery management authority that significantly affect fisheries and develop strategies to address these elements. (451) EMPs can provide the basis for determining the allowable removal rate of both targeted and incidentally taken species. (452) Removal rates should take mortality attributed to such factors as pollution, climatic episodes, and habitat loss in its determination. The removal rate of any individual species must consider the effects on predator, competitor, and prey species as well as on species incidentally taken in the process. While the harvest levels of exploitable species should be maximized as consistent with ecosystem health, MSY for an individual species should not be presumed to provide a relevant benchmark to protect ecosystem health. B. Habitat Protection EMPs should provide the basis for identification of habitat that is of particular ecosystem-wide importance. Areas essential to particular species at crucial stages of the life cycle (e.g., spawning, nursery areas, or other aggregation) should be designated as essential living marine resources habitat (ELMRH) and regulated to provide appropriate protections. (453) The definition of ELMRH should be adapted from the concept of EFH, but further refined along the lines of HAPC to allow more meaningful and appropriate protections. ELMRH should not be designated generally or descriptively, but should designate specific geographic areas and, in appropriate cases, specific time periods. Habitat with special implications for the entire ecosystem should be assessed for protection as part of a system of marine reserves. Because such reserves may also serve as benchmarks for assessment of ecosystem health, reserves representative of ecosystem types should be included in the network of marine reserves. The reserve system should be continually monitored and assessed to determine the effect of the reserves both within and outside their boundaries. As in the case of management of removal of species, designation and management of reserves should be adaptive to allow expansion or contraction of individual reserves or the reserve system in response to the needs of the ecosystem. (454) C. Consultation and Cooperation Because the proposed regime manages only the living marine resources sector, other activities that affect the marine environment and are outside the regime's jurisdiction cannot be addressed directly. The current type of consultation process for EFH should be retained to require federal agencies to consult with the Secretary with respect to actions or proposed actions authorized, funded, or undertaken by the agency that will adversely affect ELMRH. (455) The same type of consultation requirement should apply to actions that directly affect species that are at diminished population levels and subject to recovery plans. Recovery plans should specifically identify what kind of activities are likely to affect adversely the recovery of the stock and require consultation. Public notice and opportunity to comment should be available when federal agencies respond to the Secretary with reasons for not following the Secretary's recommendations. (456) For endangered and threatened species and marine reserves, however, more positive protections should apply. For example, an ESA section 7(a)(2) requirement that federal agencies not undertake, permit, or fund any action that is "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical" should be retained for the living marine resources regime and expanded to actions that are likely to significantly degrade the ecosystem integrity of designated marine reserves. To ensure better coordination with states in protecting ELMRH and marine reserves, the CZMA should be amended to require states to include protections for ELMRH within state jurisdiction in state coastal zone management programs. Coastal management programs should also be required to provide a mechanism for consultation with ecosystem management committees on actions taken or authorized by the state that will adversely affect ELMRH both within and beyond state waters. Provisions should be made for an appeal process for permits denied based on adverse affects to ELMRH, marine reserves, or marine species subject to recovery plans. The Secretarial review provided for denial of permits for inconsistency with state coastal management programs may provide a useful model. Standards or models for mitigation of impacts should be developed and adopted by NOAA Fisheries that address both forms and scope of mitigation requirements. D. Decision Making 1. Ecosystem Management Plans Should Be Developed by NOAA Fisheries (457) in Consultation with LMR Ecosystem Management Committees. Although management decisions on the basis of maintaining the "health of the ecosystem" would seem to be decisions that can be addressed scientifically and technologically, the fact that numerous determinations must be made with insufficient data means that many management choices are policy choices, rather than scientifically mandated determinations. (458) Even when data are adequate and relatively conclusive, a number of actions may still achieve the result dictated by the scientific evidence. Input from industry, resource scientists and managers, environmental groups, local and state government representatives, and others provides necessary insights into the effects and viability of different management options. In short, there would still be an important role for an Ecosystem Management Committee, supported by appropriate advisory groups, to develop recommendations for policy and implementation within the context of carefully crafted ecosystem management principles and goals established by legislation or NOAA Fisheries regulations. Ecosystem Management Committees should also play a role in management of marine reserves and development of recovery plans. The membership of committees should be modeled after TRTs. (459) Certain designated seats, however, should be required to ensure a broad representation of interests, with additional at-large seats also available for representation of other interests that have not been adequately identified. The Secretary should appoint members from nominations submitted by individuals and organizations. The membership should also include marine resource managers from each state in the ecoregion appointed by the governors of each state. As in the case of TRTs, LMR Ecosystem Management Committees would develop draft Ecosystem Management Plans and recovery plans reflecting the group consensus on the development and implementation of policies and priorities to protect and restore the health of the ecosystem. Like TRT plans, these plans would be advisory, and the Secretary would have ultimate responsibility for the final plan. Unless the plan is inconsistent with the law or the ecosystem management principles, is questionable based on the best scientific evidence or previous management experience, or is economically infeasible, the Secretary should usually adopt it and should be required to explain deviations from the draft plans. Although driven by the desire to ensure that their interests have a voice, committee members cannot be expected to participate conscientiously if their recommended actions are not taken seriously. In addition, Native Alaskan and Indian tribes should be represented on Ecosystem Management Committees. Enforceable comanagement agreements should be developed between NOAA Fisheries and Native Alaskan tribes, communities, or organizations that are consistent with Ecosytem Management Plans and the subsistence and treaty rights of Native Alaskans. 2. Fishery Management Councils Would Continue to Apportion Allowable Catch. NOAA Fisheries, rather than FMCs, should have the authority to determine take of exploitable species and to set limits on incidental take of protected species based on LMR ecosystem management plans and recovery plans. These determinations should continue to reflect the objective of preserving fishing communities and minimizing the economic impact on fishermen when consistent with conservation requirements. FMCs would, however, retain authority to determine the allocation and the methods of allocation of allowable takes (e.g., limited access and individual quotas). Such decisions should continue to be subject to review and approval by NOAA Fisheries to ensure that allocation measures are consistent with principles of ecosystem protection. FMCs should also have the responsibility for developing bycatch monitoring plans, programs for incentives and development of less destructive fishing gear, and plans for reduction of fishing capacity and transition programs for displaced fishermen. 3. Regulation of LMR by States Within State Waters Would Be Allowed to the Extent Consistent with Ecosystem Management Principles, Ecosystem Management Plans, the Treaty and Cultural Subsistence Rights of Native Alaskans and Indians, and Other International Treaty Obligations. All State Management of LMR Beyond State Waters Would Be Preempted, Except for Programs That Are Specifically Delegated to States. Regulation of fisheries and management of other LMRs suffer from problems in implementation and enforcement. State regulation is an important and often necessary adjunct to federal management if programs are to be effective. States should be encouraged through incentives (e.g., through coastal zone management program grants) to develop management authorities and programs that augment an ecosystem approach to LMR management. States should have presumptive authority to regulate LMR within state boundaries consistent with the principles stated above. In the case of exploited species, state authority should be subject to federal preemption, as currently is the case with state regulation of fishing. (460) The grounds for federal preemption should be extended, however, to include state action or inaction in regulating exploited species that adversely affects ecosystem integrity, contributes to overexploitation of a targeted species or bycatch, or is inconsistent with an applicable ecosystem management plan. In the case of protected species that have not traditionally been regulated by states, management authority should be delegated by the Secretary to the states that adopt programs "consistent" with the above standards. In the case of subsistence rights or treaty obligations or rights, consistency should require strict conformity. In the case of ecosystem management principles and ecosystem management plans, consistency should require that the state regulation provide comparable protections to the integrity of the ecosystem. States currently may manage certain fisheries in the EEZ if state statutes and regulations are consistent with existing FMPs. (461) This type of delegation should continued on the basis of consistency not only with the regulation of the particular species delegated, but also consistency with the applicable LMR ecosystem management plan. VI. CONCLUSION Marine ecosystem management that cuts across all sectors of marine activities is a goal worth pursuing, but will be controversial and difficult to achieve. Incremental steps toward such a marine ecosystem management regime, however, may be economically, administratively, and politically possible, particularly in the case of living marine resources, where the management authority for all the major legislation already lies within the jurisdiction of one agency--NOAA Fisheries in the Department of Commerce. Such a step would be consistent with future development of a more comprehensive ecosystem approach to regulation of other activities affecting the marine environment. This Article has attempted to highlight some of the conflicts and inconsistencies in the regimes created by the three primary statutes regulating living marine resources. These statutes have neither individually, nor collectively, ensured the health of marine ecosystems. An approach to LMR management with the primary goal of ensuring the health and integrity of the ecosystem is possible. The learning curve since the adoption of the primary LMR management legislation in the 1970s has been a steep one, but the lessons learned are all readily applicable to the development and implementation of a comprehensive LMR regime. These lessons can be put to better use. (1) The last comprehensive study of national oceans policy was carried out by the Commission on Marine Science, Engineering, and Resources, known commonly as the Stratton Commission. The Stratton Commission's final report, The Nation and the Sea (1969), made recommendations that significantly affected the development of regimes for management of the coastal zone, fisheries, and offshore resources. (2) Oceans Act of 2000, Pub. L. No. 106-256, 114 Stat. 644 (2000). (3) The 16 member Commission on Ocean Policy is comprised of individuals with diverse backgrounds and expertise in areas including naval experience; ocean exploration; resource management, marine development and transportation; and marine science, policy, and law. See U.S. COMMISSION ON OCEAN POLICY, MEET THE COMMISSIONERS, at http://www.oceancommission.gov/commission/commisionbios.html (last visited Feb. 22, 2004) (providing the biographies of the sixteen members of the commission). (4) Oceans Act of 2000 [section] 3. (5) Id. [section] 3(f)(2)(c). (6) Robin Kundis Craig, Taking the Long View of Ocean Ecosystems: Historical Science, Marine Restoration, and the Oceans Act of 2000, 29 ECOLOGY L.Q. 649, 672 (2002). (7) Oceans Act of 2000 [section] 2; see also Craig, supra note 6, at 672 (explaining that the commission's purpose, in addition to its main task of efficiency review, is to recommend a national ocean policy promoting responsible resource use). (8) See generally U. S. COMMISSION ON OCEAN POLICY, DRAFT TABLE OF CONTENTS (Nov. 22, 2002), at http://oceancommission.gov/meetings/nov22_02/toc_brief_mtg11_22.pdf; U.S. COMMISSION ON OCEAN POLICY, A SUMMARY OF TESTIMONY, INDEXED BY PRESENTERS, SEPT. 2001-APRIL 2003, at http:// oceancommission.gov/documents/midterm-report/summary/summary-testimony.pdf; U.S. COMMISSION ON OCEAN POLICY, WORKING TABLE OF CONTENTS (last updated June 26, 2003), at http://oceancommission.gov/documents/working_toc6_26_03.pdf. (9) PEW OCEANS COMMISSION, AMERICA'S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE (2003) [hereinafter PEW COMMISSION REPORT], available at http://www.pewoceaus.org/oceans/downloads/oceans_report.pdf. (10) See id. at 102-05 (recommending Congress enact a National Oceans Policy Act that, inter alia, sets standards and establishes a strong compliance, implementation, and enforcement regime based on science with healthy marine ecosystems as its main objective). (11) 16 U.S.C. [subsections] 1801-1883 (2000). (12) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (2000). (13) Marine Mammal Protection Act of 1972, 16 U.S.C. [subsections] 1361-1421h (2000). (14) The National Marine Fisheries Service (NMFS) has recently been redesignated "NOAA Fisheries." This Article will generally refer to the agency by its new name, NOAA Fisheries. However, many regulations and continuing cases still refer to NMFS. NOAA is the acronym for the National Oceanic and Atmospheric Administration. (15) The Submerged Lands Act of 1953 confirmed this jurisdiction by specifically granting the states "title to and ownership of ... natural resources," including the "fight and power to manage, administer, lease, develop and use" marine resources within their boundaries, generally three miles. 43 U.S.C. [section] 1311(a) (2000). Citizens of other states were, of course, also subject to state regulation within state waters. Id. State regulation could not, however, unreasonably discriminate against citizens of other states. See Toomer v. Witsell, 334 U.S. 385, 403 (1948) (holding that a South Carolina law that charged a $25 fee for a shrimping license for residents and a $2,500 license fee for nonresidents violated the Privileges and Immunities Clause of the Constitution); Torao Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 413, 420-21 (1948) (holding that a California law prohibiting "any 'person ineligible to citizenship'" from obtaining commercial fishing licenses violated the Equal Protection Clause when applied to discriminate against resident aliens); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 286-87 (1977) (holding that discrimination against vessels not meeting a Virginia statute's citizenship requirements was preempted by federal licensing and enrollment statutes). The states also had authority to regulate fishing by their citizens beyond territorial waters. In Skiriotes v. Florida, the Supreme Court recognized the right of a state to regulate fishing by state citizens beyond state waters, stating:
If the United States may control the conduct of its citizens upon
the high seas, we see no reason why the State of Florida may not
likewise govern the conduct of its citizens upon the high seas with
respect to matters in which the State has a legitimate interest and
where there is no conflict with acts of Congress. Save for the
powers committed by the Constitution to the Union, the State of
Florida has retained the status of a sovereign.
....
When its action does not conflict with federal legislation, the
sovereign authority of the State over the conduct of its citizens
upon the high seas is analogous to the sovereign authority of the
United States over its citizens in like circumstances.
313 U.S. 69, 77-79 (1941). Some courts had also recognized the authority of states to regulate non-state citizens beyond state waters when the state exhibited a legitimate interest and regulation was necessary for conservation of the fishery. See, e.g., Alaska v. Bundrant, 546 P.2d 530, 552, 554-56 (Alaska 1976) (holding that the state had a legitimate interest in regulation of the offshore crab fishery and the regulation was necessary in light of the importance of conservation of the fishery). (16) See generally Harry N. Scheiber, Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation--and Frustration, 20 VA. ENVTL. L.J. 119, 119-21 (2001) [hereinafter Scheiber, Fisheries Crisis] (describing the decline of fisheries off the coasts of the United States and attributing this decline to the "industrialization of fishing vessels," the emergence of "giant factory ships," and "a rapidly increasing tonnage of fishing vessels"). (17) See 16 U.S.C. [section] 1801(a)(4) (2000). (18) Pub. L. No. 89-658, [sub sections] 1-4, 80 Stat. 908, 908 (1966). (19) Exclusive U.S. fisheries in the EEZ extend from the boundary of state waters to 200 miles from U.S. baselines. 16 U.S.C. [section] 1811 (2000). State waters, which are excluded from the EEZ, generally extend from the baseline to three miles offshore, Submerged Land Act, 43 U.S.C. [section] 1312 (2000), except for the three marine league boundaries for Florida in the Gulf of Mexico, United States v. Florida, 363 U.S. 121, 129 (1960), and Texas in the Gulf of Mexico, United States Louisiana, 363 U.S. 1 (1960). (20) See 16 U.S.C. [section] 1802(11) (2000) (defining EEZ for purposes of the Act); Exclusive Economic Zone of the United States of America, Proclamation No. 5030, 48 Fed. Reg. 10,605, 10,605 (Mar. 10, 1983) (establishing the EEZ and declaring it to extend 200 nautical miles from U.S. baselines). (21) 16 U.S.C. [section] 1801(b) (2000). (22) Id. [section] 1851(a)(1)-(10). (23) Id. [section] 1851(a)(1), (2), (9). (24) Id. [section] 1851(a)(3)-(7). (25) Id. [section] 1851(a)(8), (10). (26) Id. [section] 1852(a). (27) Id. [subsections] 1852(h), 1853(a). The Act contains detailed descriptions of the required and optional elements of fishery management plans (FMPs). Management plans for Atlantic Highly Migratory Species are developed by NOAA and are an exception to the council management system. Id. [section] 1854(g). (28) Id. [section] 1853(b). (29) Id. [section] 1802(28)(A). (30) Id. [subsections] 1853(c), 1854(a)-(b). Council FMPs, FMP amendments, and proposed regulations must be approved by the Secretary of Commerce and implemented if consistent with the Magnuson-Stevens Act and other laws. (31) Id. [section] 1852(b). (32) Pub. L. No. 104-297, 110 Stat. 3559 (1996). (33) See generally Scheiber, Fisheries Crisis, supra note 16, at 128-29. (34) Congress noted that: Recent history indicates that man's impact upon marine mammals has ranged from what might be termed malign neglect to virtual genocide. These animals, including whales, porpoises, seals, sea otters, polar bears, manatees and others, have only rarely benefited from our interest: they have been shot, blown up, clubbed to death, run down by boats, poisoned, and exposed to a multitude of other indignities, all in the interests of profit or recreation, with little or no consideration of the potential impact of these activities on the animal populations involved. H.R. REP. NO. 92-707, at 11-12 (1972), reprinted in 1972 U.S.C.C.A.N. 4144, 4144-45. (35) Marine Mammal Protection Act of 1972, Pub. L. No. 92-522, 86 Star. 1027. (36) See JOSEPH KALO ET AL, COASTAL AND OCEAN LAW 575 (2d ed. 2002). (37) 16 U.S.C. [section] 1371(a) (2000). (38) Id. [section] 1362(13). (39) The OSP is the "number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element." Id. [section] 1362(9). (40) Id. [section] 1371(a)(3)(A). Taking marine mammals subject to a waiver of the moratorium is procedurally complex, requiring formal rulemaking, and is therefore seldom requested. (41) Id. [section] 1371(a)(1). Applicants must demonstrate the bona fide, nonduplicative research need for taking the animal. Permits for lethal research are issued only in limited circumstances when nonlethal alternatives are not feasible. Id [section] 1374(c)(3)(A)-(B). Public display permits are limited to applicants who meet Animal Welfare Act licensing requirements and who offer "a [public] program for education or conservation purposes ... based on professionally recognized standards of the public display community." Id. [section] 1373(c)(2)(A)(i)-(ii). A permit for public display may not be issued for a stock which has been designated by the Secretary as depleted. Id. [section] 1371(a)(3)(B). (42) Id. [sub sections] 1371(a)(2), 1387. (43) Id. [section] 1371(a)(5)(A). The Secretary is required to make specific findings that the taking will have a "negligible impact" on the species. Small take authorizations are allowed even for depleted species. (44) Id. [section] 1371(d). (45) Id. [section] 1371(a)(4)(A). (46) Id. [section] 1371(c). (47) Id. [section] 1371(b). (48) Kokechick Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795, 802 (D.C. Cir. 1988). (49) 16 U.S.C. [section] 1383a(a) (2000). (50) Potential Biological Removal (PBR) was introduced as an alternative mechanism of setting acceptable take levels that would allow depleted stocks to recover without undue delay and would maintain healthy stocks within their OSP range. Id. [section] 1386(a)(6). (51) See 16 U.S.C. [section] 1386 (2000) (requiring the Secretary to assess populations of and threats to each marine mammal stock based on best available scientific information). (52) Act of October 9, 1981, Pub. L. No. 97-58, [section] 2(1)(A), 95 Star. 979. (53) See Balelo v. Baidridge, 724 F.2d 753, 757 (9th Cir. 1984) (denying a Fourth Amendment challenge to the regulation requiring observers on fishing boats). (54) Pub. L. No. 101-627, tit. IX, [section] 901 (a)-(f), (h)-(i), 104 Stat. 4465 (Nov. 28, 1990) (codified as amended at 16 U.S.C. [section] 1385 (2000)). (55) 16 U.S.C. [section] 1532(6) (2000). (56) Id [section] 1532(20). (57) Marine endangered species under NOAA Fisheries jurisdiction are listed at 50 C.F.R. [section] 223.102 (2003). (58) These include manatees (Trichechus manatus), sea otters (Enhydra lutris), and Pacific walruses (Odobenus rosmarus). (59) 16 U.S.C. [section] 1533(b)(3)(A) (2000). (60) Id. (61) Id. [section] 1533(b)(1)(A)-(B). (62) Id. [section] 1533(a)(1). (63) Id. [section] 1533(b)(1)(A). (64) Id. [section] 1533(f). (65) Id. [section] 1533(a)(3). (66) Id. (67) Id. [section] 1532(5)(A). (66) Id. [section] 1533(b)(2). (69) Id. (70) Id. [section] 1538(a). This take prohibition has been found to extend to governmental entities that authorize or license third party activities that result in the take of marine endangered species. In Loggerhead Turtle v. Country Council of Volusia County, 896 F. Supp. 1179 (M.D. Fla. 1995), the court found the county's authorization of driving on beaches in turtle nesting areas constituted a take; in Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997), the court found a taking by the State of Massachusetts's licensing of fishermen to use gear in areas that would cause entanglement of endangered northern right whales (Eubalena glacialis). (71) 16 U.S.C. [section] 1532(19) (2000). (72) 50 C.F.R. [section] 222.102 (2004); see also Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 691 (1995) (holding that the interpretation of "harm" in the Federal Regulations by Secretary Babbitt was reasonable). (73) 50 C.F.R. [section] 222.102 (2002). (74) 16 U.S.C. [section] 1539(a)(1)(A) (2000). (75) Id [section] 1539(j). (76) Id. [section] 1539(e)(1). (77) Id [section] 1539(e)(1), (3). Subsistence includes selling edible portions of endangered wildlife, but only "in native villages and towns in Alaska for native consumption within" those areas. Id. [section] 1539(e)(3)(i). (78) Id. [section] 1539(a)(1)(B). (79) Id [section] 1539(a)(2)(h)(i)-(iii). (80) Id. [section] 1539(a)(2)(B). (81) Id. [section] 1539(b)(4). (82) Id. [section] 1536(a)(2). (83) Id. [section] 1536(d). (84) Id. [section] 1536(b)(3)(A). (85) Id. (86) RICHARD LITTELL, ENDANGERED AND OTHER PROTECTED SPECIES: FEDERAL LAW AND REGULATION 55 (1992). (87) Vill. of False Pass v. Watt, 565 F. Supp. 1123, 1160-61 (D. Alaska 1983). See also LITTELL, supra note 86, at 55 (discussing the effect of biological opinions and the discretion of the agency in choosing whether to follow the Opinion's recommendations). (88) Scheiber, Fisheries Crisis, supra note 16, at 127. (89) Press Release, Department of Commerce, NOAA Marks Another Year of Success in Rebuilding America's Marine Fish Stocks; Releases Annual Report to Congress (May 13, 2003), available at http://www.nmfs.noaa.gov/sfa/sospressrelease.pdf. (90) NOAA FISHERIES, SUSTAINING AND REBUILDING, 2002 REPORT TO CONGRESS, THE STATUS OF FISHERIES iii (2003) [hereinafter FISHERIES 2002 REPORT] available at http://www.nmfs.noaa.gov/sfa/statusoffisheries/cover2_sos.htm. NOAA Fisheries notes that these figures are not an entirely accurate indicator of the status of stocks. The status of fisheries changes from year to year "[a]s stocks are added or deleted from the report and inaccuracies are corrected," the "amount and quality of data" varies, and "definitions and interpretations of overfishing and overfished may result in status changes." Id. at 8. NOAA Fisheries recommends an assessment based on overall trends in improvement and points to the fact that the proportion of not-overfished to overfished stocks has increased. Id. at iv. (91) Id. at 25. NOAA Fisheries identifies 259 stocks as razor, that is, stocks with landings over 200,000 pounds. These stocks account for 99.9% of the nation's landings. Id. at 5, 11. Of these major stocks, 41 are subject to overfishing, 129 are not subject to overfishing, and the status of 99 stocks is classified as undefined. Forty three of the major stocks are overfished, 117 are not overfished, and 99 are undefined. Id. at 11. (92) Id. at 12. (93) Id. at 8. (94) For a complete discussion of the history of the groundfish fishery in New England until 1995, see Peter Shelley et al., The New England Fisheries Crisis: What Have We Learned?, 9 TUL. ENVTL. L. REV. 221 (1996). (95) Id. at 225-34. (96) Id. at 233-34. The stocks of cod, yellowtail flounder, and haddock decreased about 85% after 1976. This drastic depletion of these major populations severely affected the balance of the ecosystem, making the recovery of these stocks even more difficult as other species filled their niches in the ecosystem. Colin Nickerson, Troubled Waters/Fishing in Crisis, BOSTON GLOBE, Apr. 18, 1994, at 1 Metro/Region. (97) See Conservation Law Found. v. Evans, No. 00-1134, slip op. at 3 (D.D.C. Apr. 26, 2002), available at http://www.dcd.uscourts.gov/00-1134a.pdf (noting that the government violated the overfishing, rebuilding, and bycatch provisions of the SFA), vacated, 211 F. Supp. 2d 55 (D.D.C. 2002); see also Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, (D.D.C. 2001) (noting that "defendants freely concede that they have not come into compliance with the overfishing and rebuilding provisions of the SFA"). (98) See Conservation Law Found., No. 00-1134, slip op. at 9-10 (rejecting the amendment and the settlement because both were based on outmoded, invalid scientific data); see also Kristen M. Fletcher & Sarah E. Gardner, Groundfish Management Proves Daunting to Court, Fishers, 1:3 THE SANDBAR, 2002, at 1, 4-5 (discussing the reasons for rejecting the amendment), available at http://www.olemiss.edu/orgs/SGLC/SandBar%20PDF/sandbar1.3.pdf. (99) Judge Kessler stated: Much of the blame for this situation can be laid at the feet of [NOAA Fisheries]. It frequently misses its own deadlines for complying with statutory mandates, it drags its feet completing vitally significant marine research, and it is often the case that the federal courts must be called upon to force it to live up to its statutory obligations. Conservation Law Found, 195 F. Supp. 2d at 191, n.6. (100) Conservation Law Found. v. Evans, 211 F. Supp. 2d 55, 57 (D.D.C. 2002); see also Paul R. Bagley, Don't Forget About the Fishermen: In the Battle over Fisheries Conservation and Management a Conservation Ethic Has Trumped Economic Concerns of the Community--Or Has It?, 36 SUFFOLK U. L. REV. 765, 781-85 (2003) (discussing Judge Kessler's reasons for vacating her original order). (101) Conservation Law Found, 211 F. Supp. 2d at 57. (102) Id. at 58. (103) PEW COMMISSION REPORT, Supra note 9, at 38. (104) Id. at 40. (105) Gloria Godsell & Mary P. Thompson, Issues Surrounding the Gulf of Mexico Red Snapper Fishery and the Impact of the Magnuson Act Reauthorization, 9 TUL. ENVTL. L. REV. 267, 268 (1996). (106) Id. (107) Nat'l Marine Fisheries Service, Economic Interactions Between the Shrimp and Red Snapper Fisheries in the US. Gulf of Mexico, in ECONOMIC STATUS OF U.S. FISHERIES 1996, 104 (1997). (108) The overfishing of red snapper had the effect of diverting many fishermen into alternative fisheries, such as the unregulated Gulf of Mexico vermillion snapper (Rhomboplites aurorubens), which is now categorized as overfished. See FISHERIES 2002 REPORT, supra, note 90 at Table 4, available at http://www.nmfs.noaa.gov/sfa/statusoffisheries/cover2_sos.htm. (109) GULF RESTORATION NETWORK, RED SNAPPER (LUTJANUS CAMPECHANUS) 2 (2002), available at http://www.gulfrestorationnetwork.org/fisheries/red%20snapper%20FS.PDF. (110) Gulf Restoration Network, Plan to Rebuild Red Snapper Sent Back to Gulf Council, FISH TALES, Sept. 2002, at 1, available at http://www.gulfrestorntionnetwork.orgffisheries/FI%20SEP2002.pdf. The Magnuson-Stevens Act generally requires that a rebuilding plan provide for rebuilding of a stock within ten years; however, the Act allows the Secretary to allow more time "in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement ... dictate otherwise." 16 U.S.C. [section] 1854(e)(4)(A)(ii) (2000). (111) See DEPARTMENT OF COMMERCE, NOAA FISHERIES, ANNUAL REPORT TO CONGRESS ON THE MARINE MAMMAL PROTECTION ACT OF 1972, 1999-2000, at 61 (2002) [hereinafter 1999-2000 MMPA ANNUAL REPORT], available at http://www.nmfs.noaa.gov/prot_res/readingrlWMMPAannuaY1909 2000 mmparep.pdf. (112) Act of Oct. 9, 1981, Pub. L. No. 97-58, [section] 2(1)(A), 95 Stat. 979. (113) 1999-2000 MMPA ANNUAL REPORT, supra note 111, at 67. (114) Id. The U.S. tuna fleet was reported to comprise six vessels in 2000. Id. (115) Authorization for a small take permit through informal rulemaking if the total taking has "negligible impact" on the species or stock is only available for unintentional taking of small numbers of marine mammals in activities "other than commercial fishing." 16 U.S.C. [section] 1371(a)(5)(A)(i) (2000). (116) Id. [section] 1371(a)(3)(A). (117) Id. [section] 1371(a)(2). (118) 839 F.2d 795 (D.C. Cir. 1988). (119) Id. (120) Id. at 802. (121) Id. at 806. (122) 16 U.S.C. [section] 1383a(a)(2000). (123) Id. [section] 1387(a)(1). (124) Id. [section] 1386(a). (125) Id. [section] 1386(a)(5)(A). (126) Id. [section] 1387(c)(1). (127) Id. [section] 1387(c)(3)(A)(i), (iv). (128) Id. [section] 1387(c)(3)(B). (129) Id. [section] 1387(f)(1). (130) Id. [section] 1387(f)(6)(A). For a complete discussion of TRTs, see Section IV.D.2, infra. (131) 16 U.S.C. [section] 1387(f)(6)(C) (2000). (132) Id. [section] 1387(f)(4)(C). (133) Id. [section] 1387(f)(2). (134) See generally Nina M. Young, The Conservation of Marine Mammals Using a Multi-Party Approach: An Evaluation of the Take Reduction Team Process, 6 OCEAN & COASTAL L.J. 293 (2001). This author notes that of the original five TRT plans, only one, the Pacific Offshore Cetacean TRT, "achieved its goal of reaching PBR." Id. at 339. (135) NOAA FISHERIES, PROTECTED RESOURCES, SPECIES LISTED UNDER THE ENDANGERED SPECIES ACT OF 1973, at http://www.nmfs.noaa.gov/prot_res/species/ESA_species.html (last updated October 31, 2003). (136) See, e.g., Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123, 1129-33 (D. Haw. 2000) (discussing NMFS biological opinion on local fishery). (137) See, e.g., Greenpeace v. NMFS, 55 F. Supp. 2d 1248, 1264-69 (W.D. Wash. 1999) (discussing reasonable and prudent alternatives for the pollock fishery). (138) 16 U.S.C. [section] 1533 (2000) (setting forth the listing procedures). (139) One significant difference in the laws is that the ESA provides for emergency procedures in certain circumstances. Id. [section] 1533(b)(7). (140) Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 19 (D.D.C. 2001). (141) See supra note 62 and accompanying text. (142) Native Alaskan harvesting of the Cook Inlet beluga whales was leading to a decline in the distinct population of Cook Inlet whales. Until the population was actually designated as depleted, however, NMFS could not regulate the Native taking under the MMPA. Cook Inlet Beluga Whale, 156 F. Supp. 2d at 18-19. (143) 16 U.S.C. [section] 1362(1)(C) (2000). (144) Cook Inlet Beluga Whale, 156 F. Supp. 2d at 22 (internal citations omitted). (145) Id. at 20-21. (146) Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123, 1126 (D. Haw. 2000). (147) Id. at 1134. In this case, the court found, however, that the interactions between the bottom fish fishery and monk seals had resulted in a taking of the seals. Id. at 1136. (148) Id. at 1134. (149) Id. at 1135 n. 16 (citing Conner v. Bufford, 848 F.2d 1441, 1454 (9th Cir. 1988)). (150) 16 U.S.C. [section] 1851(a)(2) (2000). (151) See 50 C.F.R. [section] 600.315(b) (2002) ("The fact that scientific information concerning a fishery is incomplete does not prevent the preparation and implementation of an FMP."); Massachusetts v. Daley, 170 F.3d 23, 30 (1st Cir. 1999) (allowing NOAA Fisheries to regulate species even flit lacks complete information); A.M.L. Int'l, Inc. v. Daley, 107 F. Supp. 2d 90, 101 (D. Mass. 2000) ("The fact that scientific information is incomplete, however, does not prevent the implementation of a fishery management plan."); Parravano v. Babbitt, 837 F. Supp. 1034, 1046 (N.D. Cal. 1993) ("By requiring that decisions be based on the best scientific information available, the Act acknowledges that such information may not be exact or totally complete." (emphasis original)); Nat'l Fisheries Inst. v. Mosbacher, 732 F. Supp. 210, 220 (D.D.C. 1990) ("[T]he Court will not construe the Magnuson Act to tie the Secretary's hands and prevent him from conserving a given species of fish whenever its very nature prevents the collection of complete scientific information."). (152) 16 U.S.C. [section] 1851(a)(1) (2000). (153) Many commentators state that the 1996 SFA incorporated the precautionary approach into U.S. fishery management law. However, there is no specific reference to the precautionary approach or the precautionary principle in the SFA or implementing regulations. See, e.g., Craig, supra note 6, at 670-71 (discussing amendments to the Magnuson-Stevens Act and the ecosystem approach to fishery management); Michelle Territo, The Precautionary Approach in Marine Fisheries Conservation and the U.S. Sustainable Fisheries Act of 1996, 24 VT. L. REV. 1351, 1372 (2000) (describing management plans to stop overfishing as a "weak version of the precautionary principle"). (154) 50 C.F.R. [section] 600.310(f)(5) (2002). (155) Rio Declaration on Environment and Development, June 14, 1992, princ. 16, 31 I.L.M. 874, 879 (1992). (156) Id. princ. 15, 31 I.L.M. at 879. (157) Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. Doc. A/CONF.164/37 (1995) [hereinafter U.N. Fish Stocks Agreement], reprinted in 34 I.L.M. 1542 (1995). (158) Id. art. 6(1), 31 I.L.M. at 1551. This U.S. acceptance of the precautionary approach and its effective implementation are important to both EEZ and high seas fisheries because Article 7(2)(a) of the Agreement requires that management beyond national jurisdiction be compatible with coastal nation management of fisheries and must take into account "the conservation and management measures adopted and applied ... by the coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures." Id. art. 7(2)(a), 34 I.L.M. at 1552. (159) Id. art. 6(1), 34 I.L.M. at 1551. (160) These sections of Article 6 provide: 3. In implementing the precautionary approach, States shall: (a) improve decision-malting for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty; (b) apply the guidelines set out in Annex II and determine, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded; (c) take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fishing mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental and socio-economic conditions; and (d) develop data collection and research programmes to assess the impact of fishing on non-target and associated or dependent species and their environment, and adopt plans which are necessary to ensure the conservation of such species and to protect habitats of special concern. 4. States shall take measures to ensure that, when reference points are approached, they will not be exceeded. In the event that they are exceeded, States shall, without delay, take the action determined under paragraph 3(b) to restore the stocks. 5. Where the status of target stocks or non-target or associated or dependent species is of concern, States shall subject such stocks and species to enhanced monitoring in order to review their status and the efficacy of conservation and management measures. They shall revise those measures regularly in the light of new information. 6. For new or exploratory fisheries, States shall adopt as soon as possible cautions conservation and management measures, including, inter alia catch limit(s) and effort limit(s). Such measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks, whereupon conservation and management measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries. 7. If a natural phenomenon has a significant adverse impact on the status of straddling fish stocks or highly migratory fish stocks, States shall adopt conservation and management measures on an emergency basis to ensure that fishing activity does not exacerbate such adverse impact. States shall also adopt such measures on an emergency basis where fishing activity presents a serious threat to the sustainability of such stocks. Measures taken on an emergency basis shall be temporary and shall be based on the best scientific evidence available. Id. art 6(3)-(7), 34 I.L.M. at 1551-52. (161) But see Alison Rieser, International Fisheries Law, Overfishing and Marine Biodiversity, 9 GEO. INT'L ENVTL. L. REV. 251, 275 (1997) (arguing that the Agreement can be read to require the application of its principles to other stocks within the EEZ). (162) See also V.R. RESTREPO ET AL., TECHNICAL GUIDANCE ON THE USE OF PRECAUTIONARY APPROACHES TO IMPLEMENTING NATIONAL STANDARD 1 OF THE MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT 8-14, NOAA TECHNICAL MEMORANDUM NMFS-F/SPO-31 (1998) (drawing upon explanations of the precautionary approach in the U.N. Fish Stocks Agreement and the FAO Code of Conduct for Responsible Fisheries), available at http://shrimp.ccfhrb.noaa.gov/~mprager/Tech-Guidelines.pdf. (163) The controversy ensuing when NOAA Fisheries announced that a fishery research vessel had been using flawed equipment presents an example of this. Independent scientific review of NOAA research was necessary to validate continued reliance on data collected. John Richardson, Panel: Error Counting Fish Isn't Significant PORTLAND PRESS HERALD, Mar. 11, 2003, at 1B. (164) See, e.g., N.C. Fisheries Ass'n, Inc. v. Daley, 16 F. Supp. 2d 647, 657 (E.D. V& 1997) (ordering the Secretary of Commerce to publish the final adjusted quota within a reasonable time); N.C. Fisheries Ass'n, Inc. v. Daley, 27 F. Supp. 2d 660, 666 (E.D. Va. 1998) (finding the Secretary of Commerce acted arbitrarily and capriciously by failing to make a good faith attempt at conducting an economic analysis). (165) See, e.g., Fishermen's Dock Coop., Inc. v. Brown, 75 F.3d 164, 168 (4th Cir. 1996); S.C. Fisheries Ass'n v. Evans, 172 F. Supp. 2d 792, 798 (E.D. Va. 2001) (reviewing agency action to determine ff agency's interpretation of a regulation was reasonable). (166) There is the possibility, however, that challengers are not so much attacking the reliability of the data as they are demonstrating a lack of confidence in the agency applying the data. When a decision to regulate or not to regulate is made without complete data, the inherent conflicts in policies and administration of the MSA, MMPA, and ESA can make the decision seem arbitrary or even biased to the affected groups, whether they are resource users or environmental interest groups. (167) 16 U.S.C. [section] 1533(b)(1)(A) (2000). (168) 215 F.3d 58 (D.C. Cir. 2000). (169) Id. at 60. (170) Id. (171) See Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 681 (D.D.C. 1997) (holding that Congress clearly intended ESA to provide preventive protection before "conclusive" evidence exists). (172) 16 U.S.C. [section] 1536(c) (2000). (173) Id. [section] 1536(a)(2). (174) Id. [section] 1536(e). (175) See, e.g, Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123 (D. Haw. 2000). The court addressed issues related to the lack of adequate information in the consultation process and biological assessment to determine whether a species is likely to be jeopardized or whether habitat will be adversely affected. Id at 1130-33. The court held: [W]hen an agency concludes after consultation that it cannot insure that the proposedaction will not result in jeopardy, and yet proceeds to implement such action, the agency has flouted the plain requirements of Section 7. .... ... NMFS cannot speculate that no jeopardy to monk seals or adverse modification of their critical habitat will occur because it lacks enough information regarding the impact of the fishery on seals. Id. at 1131, 1133. (176) 50 C.F.R. [section] 600.310(e)(1) (2004). (177) See Harry N. Scheiber & Christopher Cart, From Extended Jurisdiction to Privatization: International Law, Biology, and Economies in the Marine Fisheries Debates, 1937-1976, 16 BERKELEY J. INT'L L. 10 (1998) [hereinafter Fisheries Debates], for a complete discussion of the development of MSY as the dominant theme in fisheries management after World War II. (178) Id. at 25. (179) Id. (180) In the Guidelines for National Standard 1, NOAA Fisheries recognizes that a substitute for MSY may need to be used if data are insufficient to calculate MSY and therefore the agency recommends alternative approaches. 50 C.F.R. [section] 600.310(c)(3) (2004). (181) Fisheries Debates; supra note 177, at 46. (182) Id. at 46. (183) See generally Gary Knight, International Fisheries Management--A Background Paper, in THE FUTURE OF INTERNATIONAL FISHERIES MANAGEMENT 16-37 (Gary Knight ed., 1975). The failure of MSY to incorporate fisheries economics is said to lead to overfishing and overcapitalization. As available stock is depleted, fishing efforts will tend to increase to inefficient levels; the cost to harvest the last fish is much greater than the cost to harvest the first fish and may eventually exceed the value of the fish. See also John J. Rooney, Impact of the Magnuson Fisheries Conservation and Management Act Fisheries in the US. Exclusive Economic Zone, in 12 OCEAN Y.B. 96, 96 (E. Borgese et al. eds., 1996) (describing escalating cost per fish and economic inefficiency posed by MSY); Fisheries Debates; supra note 177, at 46 (noting the overcapitalization problem posed by MSY). (184) Fisheries Debates; supra note 177, at 28-29. (185) Magnuson-Stevens Act, Pub. L. No. 94-265, [section] 303, 90 Stat. 333, 351 (1976) (codified at 16 U.S.C. [section] 1802(28)(B) (2000)). (186) "Optimum yield" is the "amount of fish which will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems." 16 U.S.C. [section] 1802(28)(A) (2000). (187) Id. [section] 1802(28)(B) (emphasis added). Optimum yield must now also provide for rebuilding of overfished stocks. Id [section] 1802(28)(C). (188) Sustainable Fisheries Act, Pub. L. No. 104-297, [section] 102, 110 Stat. 3559, 3562 (1996). (189) 16 U.S.C. [section] 1361(6) (2000). (190) Id. [section] 1362(9). The section goes on to establish a methodology to establish PBR, i.e., the product of the following factors: (A) The minimum population estimate of the stock. (B) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size. (C) A recovery factor between 0.1 and 1.0. Id. [section] 1362(20). (191) 50 C.F.R. [section] 216.3 (2003). (192) 16 U.S.C. [section] 1362(20) (2000). (193) See generally MICHAEL J. BEAN & MELANIE J. ROLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 113-15 (1997) (discussing the potential conflict and concluding that the MMPA requires ecosystem health as the primary objective and OSP as the secondary objective where inconsistent). (194) See generally JOSEPH KALO ET AL., supra note 36, at 585; James A.R. Nafziger, The Management of Marine Mammals After the Fishery Conservation and Management Act, 14 Willamette L.J. 153, 171 (1978) (noting that the regulatory definition's emphasis on productivity rather than populations is contrary to the legislative intent). (195) See, e.g., Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1014 (D.C. Cir. 1977) (The appellants argued that "MSY inherently means harvesting more animals than OSP. But appellants admit that they too do not really know what either term means.... "The court could not "conclude that MSY is definitely inconsistent with OSP."). Id. See also BEAN & ROLAND, supra note 193, at 115-16. (196) See generally EUGENE H. BUCK, MARINE MAMMAL PROTECTION ACT: REAUTHORIZATION ISSUES FOR THE 107TH CONGRESS 8 (2001) [hereinafter MMPA REAUTHORIZATION ISSUES]. (197) 16 U.S.C. [section] 1362(1)(A)(2000). (198) Id. [section] 1371(a)(3)(B). (199) Id. [section] 1371(b)(3). (200) See supra notes 103-04 and accompanying text (discussing "fishing down the food web"). (201) See generally Dr. W.M. von Zharen, Ocean Ecosystem Stewardship, 23 WM. & MARY ENVTL. L. & POL'Y REV. 1 (1998) (discussing an ecosystem-based approach to ocean management); Marion McPherson, Integrating Ecosystem Management Approaches into Federal Fishery Management Through the Magnuson-Stevens Fishery Conservation and Management Act, 6 OCEAN & COASTAL L.J. 1 (2001) (discussing ecosystem-based management of fisheries); Symposium, The Ecosystem Approach: New Departures for Land and Water, 24 ECOLOGY L.Q. 619 (1997) (including articles on fisheries management); Martin H. Belsky, The Ecosystem Model Mandate for a Comprehensive United States Ocean Policy and Law of the Sea, 26 SAN DIEGO L. REV. 417, 461 (1989) (noting that the United Nations Convention on the Law of the Sea supports an ecosystem-based approach). (202) ECOSYSTEMS PRINCIPLES ADVISORY PANEL, ECOSYSTEM BASED FISHERIES MANAGEMENT, A REPORT TO CONGRESS 1 (1999) [hereinafter ECOSYSTEMS MANAGEMENT REPORT]. (203) Such an exercise could likely fall into the category of "paralysis by analysis" that has been criticized by Bush Administration regulators. Id. at 10-11. (204) The Panel was directed by Congress to assess the extent to which ecosystem principles are used hi fisheries management and to recommend how such principles can be further implemented to improve living marine resource management. For its charter, see Appendix A of the ECOSYSTEMS MANAGEMENT REPORT, supra note 202, at 48-49. (205) Id. at 1. (206) 16 U.S.C. [section] 1862 (2000). (207) ECOSYSTEMS MANAGEMENT REPORT, supra note 202, at 10. (208) Id. at 27. (209) See generally id. at 1-5. (210) Id. at 27. (211) Id. (212) Id. at 20. (213) Id. at 33-34. (214) National Environmental Policy Act of 1969, 42 U.S.C. [sub section] 4321-4370e (2000). (215) See, e.g., Am. Petroleum Inst. v. Knecht, 456 F. Supp. 889, 929 (C.D. Cal. 1978) (upholding a coastal management program EIS with arguably limited analysis and alternatives; the "essence" of the program was "sensitivity to environmental concerns,... consequently, fewer and less detailed environmental studies would be expected because the Program emphasizes environmental protection"). (216) NOAA Fisheries has made similar arguments, claiming that its analysis in development of FMP amendments fully considers all relevant factors and "result[s] in a practical analysis of the environmental impacts of the fisheries." Greenpeace v. Nat'l Marine Fisheries Serv., 55 F. Supp. 2d 1248, 1275 (W.D. Wash. 1999); see also Am. Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 19 (D.D.C. 2000) (discussing the contention that a full EIS was not required because a hard look was taken at each amendment). (217) In Greenpeace v. National Marine Fisheries Service, the court stated: Each amendment to the FMPs may have been individually minor and therefore properly dealt with in an EA/FONSI rather than an SEIS [supplemental environmental impact statement].... Nevertheless, NEPA does not permit NMFS to continue making individually minor but collectively significant changes to the FMPs without preparing an SEIS analyzing these changes.... By preparing only EA/FONSIs for each FMP amendment, NMFS tried to avoid "significance" for many years. 55 F. Supp. 2d 1248, 1273-74 (W.D. Wash. 1999) (218) NOAA Fisheries argued in American Oceans Campaign v. Daley that it "did not need to, and in-fact could not, consider additional alternatives besides the status quo and the... Amendments, because ... the FCMA ... does not allow the Secretary to do anything besides approve, disapprove, or partially approve the Amendments, [therefore] no other alternatives were ... feasible." 183 F. Supp. 2d at 19. (219) Id. (220) Natural Res. Def. Council v. Evans, 168 F. Supp. 2d 1149, 1159-60 (N.D. Cal. 2001). (221) Greenpeaee, 55 F. Supp. 2d at 1274-76. (222) Id. at 1276. (223) NAT'L MARINE FISHERIES SERVICE, MANAGING THE NATION'S BYCATCH: PRIORITIES, PROGRAMS AND ACTIONS FOR THE NATIONAL MARINE FISHERIES SERVICE 9 (1998), [hereinafter MANAGING BYCATCH], available at http://www.nmfs.noaa.gov/bycatchplanonline.pdf. (224) Size limits lead to substantial regulatory discards. It is reported that undersized fish constitute up to 87% of the total catch in some fisheries. High mortality of undersized discards removes a significant population of the recruitment stock for those fisheries. This "tragedy of single-species management practices," also extends to fishermen who must throw away marketable fish. PAUL K. DAYTON ET AL., PEW OCEANS COMM'N, ECOLOGICAL EFFECTS OF FISHING IN MARINE ECOSYSTEMS OF THE UNITED STATES 17 (2002) [hereinafter EFFECTS OF FISHING], avilable at http://www.pewoceans.org/reports/POC_EcoEffcts_Rep2.pdf. (225) Discarding low value catch to maximize the trip profits is known as "high grading." High grading also occurs in recreational fisheries when the fisher discards catch when it can be replaced by a larger, more valued specimen. In recreational fisheries, even many catch-and-release programs have high mortality rates. Id. (226) Bycatch can occur in active fishing activity or can occur by fishing gear that is lost or discarded--known as "ghost fishing." Ghost fishing occurs not only with the highly publicized high seas driftnets, but also with lost or abandoned crab and lobster traps, discarded fishing lines, and other kinds of lost nets and gear. Research on Georges Bank demonstrates how pervasive and destructive such ghost fishing is. Id. at 20-21. (227) Id. at iii. (228) Id. at 21-22. (229) Id. at 16. (230) See MANAGING BYCATCH, supra note 223, at 2. (231) 16 U.S.C. [section] 1851(a)(9) (2000). (232) Id. [section] 1802(2). The Magnuson-Stevens Act also defines economic discards as fish targeted by the fishery but discarded because of "undesirable size, sex, or quality," id. [section] 1802(9), and defines regulatory discards as those fish discarded as required by regulation. Id. [section] 1802(33). (233) The NOAA Fisheries webpage for bycatch issues provides the following insight into this term: What does "to the extent practicable" mean? From a National perspective, there is too much bycatch mortality in a fishery if a reduction in bycatch mortality would increase the overall net benefit of that fishery to the Nation through alternative uses of the bycatch species. In this case, a reduction in bycatch mortality is practicable and the excess bycatch mortality is a wasteful use of living marine resources. In many cases, it may be possible but not practicable to eliminate all bycatch and bycatch mortality. (234) 16 U.S.C. [section] 1853(a)(11) (2000). (235) See, for example, Natural Resources Defense Council v. Evans, 243 F. Supp. 2d 1046 (N.D. Cal. 2003), where the court outlined the delay in bycatch limitation, as follows:
In its August 2002 summary judgment order the court found that
Amendment 13 violated the Magnuson-Stevens Act requirements to
reduce bycatch and include all practicable bycatch reduction
measures in the FMP. The court recognized the two-year Congressional
deadline for amending the FMP to reduce bycatch. This deadline
expired four years ago, in 1998. NMFS proposed timetable for bycatch
reduction is open-ended and centers on an environmental analysis
("EA") that will not be released in draft form until summer 2003, or
in final form until summer 2004. This despite the court's ruling
that "overfished Pacific groundfish species need protection now, not
at some undetermined time in the future."
Id. at 1057 (internal citations omitted). (236) See, e.g, id.; Pac. Marine Conservation Council, Inc. v. Evans, 200 F. Supp. 2d 1194, 1200-01 (N.D. Cal. 2002) (noting that NMFS failed to adopt sufficient assessment methodology); Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, 13 (D.D.C. 2001) (same); Natural Res. Def. Council v. Evans, 168 F. Supp. 2d 1149, 1154 (2001) (same), aff'd in part and vacated in part, 316 F.3d 904 (9th Cir. 2003). (237) See generally Daniel A. Waldeck & Eugene H. Buck, CRS Report for Congress, The Magnuson-Stevens Fishery Conservation and Management Act: Reauthorization Issues for the 107th Congress 18-20 (2001) [hereinafter FCMA REAUTHORIZATION ISSUES], available at http://www.ncseonline.org/NLE/CRSReports/Marine/mar-41.pdf. (238) See supra notes 119-34 and accompanying text (discussing Kokechik and its effect on commercial fisheries). (239) The determination that bycatch includes species protected by the MMPA or ESA can have severe ramifications for a fishery. (240) E.g., 16 U.S.C. [section] 1371(c) (serf-defense); id. [section] 1371(a)(4) (deterrence); id [section] 1374(c) (scientific research, public display, or enhancing survival or recovery). (241) See Blue Water Fisherman's Ass'n v. Mineta, 122 F. Supp. 2d 150, 167 (D.D.C. 2000) (upholding an FMP measure that limited bycatch to the maximum extent practicable); A.M.L. Int'l, Inc. v. Daly, 107 F. Supp. 2d 90, 103-04 (2000) (same). (242) See supra notes 122-34 and accompanying text (discussing Congress's response to Kokechik and its implementation). (243) 16 U.S.C. [section] 1387 (2000). (244) 16 U.S.C. [section] 1539(a)(1)(B)(2000). (245) Id. [section] 1539(a)(2)(A)-(B). (246) See NOAA FISHERIES, PROTECTED RESOURCES, SPECIES LISTED UNDER THE ENDANGERED SPECIES ACT OF 1973, at http://www.nmfs.noaa.gov/prot_res/species/ESA_species.html (last visited Feb. 22, 2004) (listing domestic and international endangered and threatened marine species). (247) 16 U.S.C. [section] 1533(f) (2000). (248) Or. Natural Res. Council v. Turner, 863 F. Supp. 1277, 1284 (D. Or. 1994). (249) 16 U.S.C. [section] 1538(a) (2000). (250) Id. [section] 1533(d). (251) See, e.g., Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1, 5-10 (1996) (arguing for the concept of recovery as a basis for effective species protection under the ESA). (252) 16 U.S.C. [section] 1851(a)(1) (2000). (253) Id. [section] 1802(29). (254) Id. [section] 1853(a). (255) "A fishery shall be classified as approaching a condition of being overfished if, based on trends in fishing effort, fishery resource size, and other appropriate factors, the Secretary estimates that the fishery will become overfished within two years." Id. [section] 1854(e)(1). (256) Id. [section] 1854(e)(3). (257) Id. [section] 1854(e)(4)(A)(i). (258) The complex nature of fisheries interactions again complicates implementation. Fishing at MSY for one species may result in overfishing of another species. NOAA Fisheries has been criticized by environmental groups for addressing this problem by creating regulatory exemptions that permit overfishing in certain circumstances. See 50 C.F.R. [section] 600.310(d)(6) (2004) (permitting overfishing if it will result in long term benefits, mitigating measures have been considered, and the level of fishing will not cause any species to require protection under the ESA). (259) 16 U.S.C. [section] 1854(e)(4)(A)(ii) (2000). (260) Id. [section] 1854(e)(5). Critics contend that FMCs have been slow to adopt measures to prevent overfishing and that NMFS has allowed delays. Groups also charge that the qualifying language allowing up to a ten-year period provides Councils the opportunity to place economics before recovery, and that ten years has been adopted as a standard recovery time rather than an outside limit. See FCMA REAUTHORIZATION ISSUES, supra note 237, at 10. (261) See infra notes 381-87 and accompanying text. (262) See, e.g., Fishermen's Dock Coop. v. Brown, 75 F.3d 164, 173 (4th Cir. 1996) (overturning a district court determination that a quota with an 80% probability of not exceeding target mortality was too high). The lower court had found that a plan with 59% probability of success more properly balanced the requirements of the Act. Id. at 167. (263) 209 F.3d 747 (D.C. Cir. 2000). (264) Id. at 749; see also Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, 10 (D.D.C. 2001) (holding that agencies must show at least a 59% likelihood of meeting targets). (265) 16 U.S.C. [section] 1533(a)(3) (2000). (266) Id. [section] 1536(a)(2). (267) Id. [section] 1532(5). (268) Id. [section] 1533(a)(3). (269) Id. [section] 1533(b)(2). (270) 245 F.3d 434 (5th Cir. 2001). (271) Id at 443 (internal citations omitted). (272) Habitat considerations had also been included in the 1986 and 1990 amendments to the Act. In 1986, Councils were required to include habitat assessments in FMPs, 16 U.S.C. [section] 1853(a)(7) (2000), and the 1990 amendments authorized the Councils to comment on federal or state actions that substantially affect fisheries habitat. Id. [section] 1855(b)(3)(B). (273) Id. [section] 1801(a)(9). (274) For a complete discussion of EFH, the problems in implementation, and the implications for coastal development, the fishing industry, and habitat itself, see Kristen M. Fletcher & Sharonne E. O'Shea, Essential Fish Habitat: Does Calling It Essential Make It So?, 30 ENVTL. L. 51 (2000). (275) 16 U.S.C. [section] 1802(10) (2000). (276) Certain types of mobile fishing gear, e.g., trawls, dredges, and demersal longlines, can have obvious, immediate, and direct physical impacts on seafloor habitats. "The physical impact of the gear dragged over ... or set upon ... the seabed is influenced by gear mass, the point or points of contact with the seafloor, the speed with which gear is dragged, and the frequency with which these events are repeated." EFFECTS OF FISHING, supra note 224, at 26. Less obvious is the effect of simply removing fish from the ecosystem (which is aggravated by overfishing and complicated bycatch issues). "Fishing not only alters the abundance of stocks, but it also affects the age of maturity, size structure, sex ratio, and genetic makeup of populations." Id. at 11 (internal citations omitted). Fishing can have cumulative and synergistic effects throughout the food web that are diverse and unpredictable. See generally id. at 7-15. (277) 16 U.S.C. [section] 1853(a)(7) (2000). (278) See Fletcher & O'Shea, supra note 274, at 71 (noting that some commentators have stated that a broad definition of EFH is one of the factors contributing to the entire Gulf of Mexico being designated as EFH); see also FCMA REAUTHORIZATION ISSUES, supra note 237, at 13-15. (279) 50 C.F.R. [section] 600.815(a)(8) (2003). (280) 16 U.S.C. [section] 1853(a)(7) (2000). (281) 50 C.F.R. [section] 600.815(a)(2) (2003). (282) Until recently, no measures were actually incorporated into plans to mitigate fishing impacts. NOAA Fisheries had taken the position that the Act required site-specific scientific evidence and "there was virtually no information connecting fishing gear or activities to destruction of [particular] EFHs[,] nor was there any information on the efficacy of methods to reduce any adverse effects." Am. Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 8 (D.D.C. 2000). When a coalition of environmental groups challenged five FMPs that lacked any measures to address fishing impacts on EFHs, the court found NOAA Fisheries's interpretation to be reasonable. Id at 17. However, the court held that the agency failed to meet NEPA requirements by not describing and discussing the environmental impacts of fishing practices on the particular EFHs and by not considering a broader range of feasible alternatives. Id. at 21. NOAA Fisheries and the Councils are preparing new environmental impact statements under a settlement agreement. The second generation of EFH amendments to FMPs may be even more controversial, in light of the dearth of site-specific data on the impacts of fishing practices, the difficulty of basing mitigation on this kind of information would continue to allow NOAA Fisheries and Councils to be conservative in imposing restrictions that will likely have severe economic consequences for the fishing industry. A new study by the National Academies of sciences, The Effects of Trawling and Dredging on Seafloor Habitat (2002), however, provides an alternative approach. In the absence of site-specific data, the study recommends a comparative risk process that takes into account the conservation goals, the deficiency of information, and the conflicting social values. Id. (283) 50 C.F.R. [section] 600.815(a)(4)(i)-(iii) (2003). (284) Exec. Order No. 13,158, 65 Fed. Reg. 34,909 (May 26, 2000). (285) PEW COMMISSION REPORT, supra note 9, at 106 n.*. (286) Id. at 31. (287) Id. at 34 (recommending that Congress establish marine reserves), id. at 106 (calling for Congress to "provide a mandate and authority for designing a national system of marine reserves."); see, e.g, Jeff Brax, Zoning the Oceans.. Using the National Marine Sanctuaries Act and the Antiquities Act to Establish Marine Protection Areas and Marine Reserves in America, 29 ECOLOGY L.Q. 71, 128 (2002) (recognizing that no-take marine reserves are "essential to the replenishment of stressed fish stocks and the preservation of unique undersea environments"); Matthew Chapman, Annual Review of Environmental and Natural Resources Law: The Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve: Ephemeral Protection, 29 ECOLOGY L.Q. 347, 349 (2002) (asserting that the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve "is necessary to better protect and sustain the coral reef habitats and the creatures that depend on them"); Craig, supra note 6, at 684-87 (arguing that marine protected areas are the best tools for passive restoration of fished and unfished species); Robin Kundis Craig, Taking Steps Toward Marine Wilderness Protection? Fishing and Coral Reef Marine Reserves in Florida and Hawaii, 34 MCGEORGE L. REV. 155, 262 (2003) (stating that, even though marine protected areas (MPAs) cannot solve all problems, the designation of MPAs "demonstrates that marine wilderness has value"); Kristen M. Fletcher, "National Fisheries Law and Policy" Fix It! Constructing a Recommendation to the Ocean Commission for the Future of Fisheries, 8 ROGER WILLIAMS U. L. REV. 93, 133 (2002) (recommending, among other things, the development of "a system of marine protected areas" that can "provide rebuilding areas for species"); Suzanne Iudicello & Margaret Lytle, Marine Biodiversity and International Law: Instruments and Institutions That Can Be Used to Conserve Marine Biological Diversity Internationally, 8 TUL. ENVTL. L.J. 123, 161 (1994) (recommending the adoption of marine protected areas "where entire systems can be safeguarded from the damaging effects of human activities"); William J. Ballantine, Network of "No-Take" Marine Reserves Are Practical and Necessary, in NANCY L. SHACKELL & J.H. MARTIN WILLISON, MARINE PROTECTED AREAS AND SUSTAINABLE FISHERIES 12 (1995) (describing the success of marine "no-take" marine reserves in New Zealand and pointing out that all political parties in New Zealand endorse them); STEPHEN R. PALUMBI, PEW OCEANS COMMISSION MARINE RESERVES: A TOOL FOR EOSYSTEM MANAGEMENT AND CONSERVATION 37 (2002) (recommending the immediate implementation of marine reserves in "all major marine habitats in U.S. coastal waters"). (288) 16 U.S.C. [section] 1536(a)(2) (2000). (289) As discussed earlier, this can create inherent problems in implementing the process. (290) 50 C.F.R. [section] 402.14(b) (2003). No formal consultation is then necessary if the expert agency concurs. (291) Id. [section] 402.14(a)-(b)(1). (292) 16 U.S.C. [section] 1536(b)(3)(A) (2000). (293) Id. (294) Id. (295) Id. [section] 1536(a)(2). (296) 122 F. Supp. 2d 1123 (D. Haw. 2000). (297) Id. at 1131. (298) Id. at 1133. Note that the court appears to be applying a precautionary approach. (299) Id. at 1131 n.10. (300) Id. at 1132. (301) 80 F. Supp. 2d 1137 (W.D. Wash. 2000). (302) Id. at 1143-44. (303) Id. at 1150. (304) See 50 C.F.R. [section] 600.815(a)(4) (2004) (requiring the FMP to describe known and potential adverse effects to the EFH). (305) 16 U.S.C. [section] 1855(b)(2) (2000). (306) As in the case of NEPA and the EIS process, the EFH consultation provisions can potentially provide the necessary openness, information, and time necessary for the political process to mobilize and deal with issues of public concern. See Milner S. Ball, Good Old American Permits: Madisonian Federalism on the Territorial Sea and Continental Shelf, 12 ENVTL. L. 623, 656-58 (1982) (suggesting that permits are a "political art form" as a continuation of political processes by agencies resulting from either convenience or context); Fletcher and O'Shea, supra note 274, at 67, 91-93 (noting that the EFH provisions provide an opportunity to recognize the ramifications of an activity through more thorough comments and responses). (307) 16 U.S.C. [section] 1855(b)(1)(D) (2000). (308) Id. [section] 18550))(2). (309) Id. [section] 1855(b)(3)(A). (310) Id. [section] 1855(b)(4)(A). (311) Id. [section] 1855(b)(4)(B). (312) It should be noted that regulations provide no guidelines for mitigative measures. (313) See generally 50 C.F.R. [subsections] 600.905-930 (2004). (314) Coastal Zone Management Act of 1972, 16 U.S.C. [subsections] 1451-1464 (2000). (315) Id. [section] 1456(c)(3)(A)-(B). (316) It is common these days to use the term "stakeholder" in this context; the author takes the position, however, that we all are stakeholders when public resources are involved. (317) See generally PEW COMMISSION REPORT, Supra note 9, at 45 (discussing the public benefit of making managers responsible for policy decisions applicable to their region); David A. Dana, Overcoming the Political Tragedy of the Commons: Lemons Learned from the Reauthorization of the Magnuson Act, 24 ECOLOGY L.Q. 833, 841-42 (1997) (suggesting that, instead of a diverse and expert compendium of opinions, the decentralized nature of regulatory authority under the Magnuson Act has led to councils comprised mostly of commercial fisherman). (318) See supra notes 23-31 and accompanying text; see generally Eldon V.C. Greenberg & Michael E. Shapiro, Federalism in the Finely Conservation Zone." A New Role of the States in an Era of Federal Regulatory Reform, 55 S. CAL. L. REV. 641 (1982) (concluding that state authority under the Magnuson Act allows for state involvement in fisheries of interest to that state). (319) 16 U.S.C. [section] 1852(b)(2)(C) (2000). (320) Id. [section] 1852(b)(2)(A). (321) Id. [section] 1851(a)(1)-(10). (322) Id. [section] 1853. (323) Id. [section] 1854(a)(3). (324) The Secretary has primary authority for management plans for Atlantic highly migratory species. Id. [section] 1854. (325) Id. [section] 1854(e)(5). (326) Id. [section] 1854(c). (327) See Thomas A. Okey, Membership of the Eight Regional Fishery Management Councils in the United States: Are Special Interests Over-Represented?, 27 MARINE POLICY 193, 197 (2003) (indicating that commercial fishing interests comprised the largest collective on regional councils between 1990 and 2001); see also NOAA FISHERIES, 2003 REPORT TO CONGRESS ON APPORTIONMENT OF MEMBERSHIP ON THE REGIONAL FISHERY MANAGEMENT COUNCILS PURSUANT TO SECTION 302(B)(2)(B) OF THE MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT 7 (2004) (tabulation of appointed council members shows abundance of commercial interest representation) [hereinafter FMC MEMBERSHIP REPORT], available at http:// www.nmfs.noaa.guv/sfa/reg_svcs]Council-Reporttocongress/RptCongress03.pdf. (328) The Pew Commission noted: In practice, resource users dominate the councils' voting memberships.... This often leads to short-term allocation considerations overriding long-term conservation imperatives needed to ensure a sustainable fishery.... The Commission's investigation has identified no other publicly owned American natural resource managed through a process that allows resource users to decide how much of the public resource can be taken for private benefit. PEW COMMISSION REPORT, supra note 9, at 45. See also Dana, supra note 317, at 834 (suggesting industry participants dominate the regulatory entity, resulting in capture of the entity by those with an interest in overuse of the resource); Fletcher, supra note 287, at 121 (citing the "dismissal" of concerns over economic conflicts for forcing members to consider their own short-term economic interests against long-term sustainable fisheries); Okey, supra note 327, at 194 (noting that councils dominated by user groups capture the regulatory or management process, leading to decisions that "maximize short-term profit at the expense of sustainability"). (329) Dana, supra note 317, at 834. See also PEW COMMISSION REPORT, supra note 9, at 44 (suggesting that, due to capture, government regulators believe their "role is to defend the interests of the regulated community rather than promote the public interest"). (330) Dana, supra note 317, at 836. (331) The SFA imposed a number of new requirements, particularly with respect to overfishing and overfished stocks. Professor Dana characterizes these requirements, however, as only "reasonably modest conservation protections." Id. at 844. (332) Id. at 842-43. In addition, Congress has limited Secretary's authority by requiring FMC approval in at least two instances. First, a plan prepared by the Secretary cannot contain limited entry or individual quota programs unless approved by a majority of the voting members of a council. 16 U.S.C. [section] 1854(c)(3) (2000). Second, the Secretary may not repeal or revoke an FMP unless approved by three-quarters of the voting council members. Id. [section] 1854(h). (333) See 1 OP. OFF. LEGAL COUNSEL 236, 240 (1977) (finding that the FMC is subject to the Federal Torts Claims Act because the entity is an "integral part" of a federal agency). (334) 18 U.S.C. [section] 1852(j)(8) (2000). (335) Nominees, appointees, and voting members of the FMCs must disclose financial interests of themselves, their immediate family or partner, and any organization with which the council member has a position as "an officer, director, trustee, partner, or employee." 16 U.S.C. [section] 1852(j)(2) (2000). (336) The Act requires that a council member may "not vote on a Council decision which would have a significant and predictable effect on such financial interest." Id. [section] 1852(j)(7)(A). (337) In signing the 1996 SFA into law, President Clinton noted that the SFA: does not provide adequate protections against conflicts of interest on the part of members of the fishery management councils. A council member will be able to vote in many situations where the member could derive a significant financial gain from the matter. Further, the conflict provisions will not be consistent with other Government-wide conflict laws. Statement by President William J. Clinton upon signing the Sustainable Fisheries Act, 32 WEEKLY COMP. PRES. DOC. 1334 (Oct. 14, 1996). (338) FMC MEMBERSHIP REPORT, supra note 327, at 7 (showing that commercial council members outnumber recreational members 36 to 28). A major exception is the Guff of Mexico FMC (and to a lesser extent the South Atlantic FMC) where recreational interests are dominant. Okey, supra note 327, at 199. It should be noted, however, that most of the recreational representation is for charter boats, a substantial commercial enterprise. (339) Okey, supra note 327, at 199. (340) Pub. L. No. 92-463, 86 Stat. 770 (1972) (codified at 5. U.S.C. app. 2 [subsections] 1-15 (2000)). (341) Id. [section] 5(b)(2). (342) 16 U.S.C. [section] 18520)(1) (2000). (343) Id. [section] 1852(b)(2)(B). (344) One commentator finds "nonsensical" the "assumption that balance and fairness between commercial and recreational fishing sectors will automatically result in balanced and fair outcomes for the general public." See Okey, supra note 327, at 202. (345) 50 C.F.R. [section] 600.215(b)(vi) (2004). (346) 16 U.S.C. [section] 1852(b)(2)(C) (2000). (347) Id. (348) Id. (349) 16 U.S.C. [section] 1387(a) (2000). The goal was initially to limit incidental catch and mortality to less than a stock's potential biological removal level and subsequently reduce incidental kill and serious injury of marine mammals "to insignificant levels approaching a zero mortality and serious injury rate...." Id. NOAA has noted that the taking of marine mammals in the course of noncommercial fishing is also a problem in some instances. In some noncommercial fisheries, for example, the gear used is identical in design, manner, and location of deployment to commercial fishing gear. The legislation does not, however, address how to deal with the taking of marine mammals in noncommercial fisheries. (350) 16 U.S.C. [section] 1386 (2000). (351) Id. [section] 1386(a)(5). (352) Id. [section] 1387(f)(1). The Secretary may also develop a take reduction plan for a commercial fishery that "has a high level of mortality and serious injury across a number of such marine mammal stocks." Id. (353) Id. [section] 1387(f)(2). (354) The MMPA identifies those stocks as those "species or stocks whose level of incidental mortality and serious injury exceeds the [PBR] level, those that have a small population size, and those which are declining most rapidly." Id. [section] 1387(f)(3). (355) Id. (356) Id. [section] 1387(f)(7)(B)(i). (357) Id. [section] 1387(f)(6)(C). (358) Id. (359) See RESOLVE, INC., NAT'L MARINE FISHERIES SERVICE, THE NATIONAL MARINE FISHERIES SERVICE TAKE REDUCTION TEAM NEGOTIATION PROCESS EVALUATION 2 (1999) (showing that the initial teams ranged in size from 32 to 12 members) [hereinafter RESOLVE REPORT], available at. http://www.nmfs.noaa.gov/prot_res/ readingrm/TRT/trtevaluation.pdf. (360) See 1999-2000 MMPA ANNUAL REPORT, supra note 111, at 52. (establishing TRTs for the Gulf of Maine Harbor Porpoise (Phoeoena phoeoena), the Mid-Atlantic Harbor Porpoise, Atlantic Offshore Cetaceans, Atlantic Large Whales, and Pacific Offshore Cetaceans). NOAA Fisheries has recently convened a sixth TRT for the bottienose dolphin (Tursiops truncatus). OFFICE OF PROTECTED RESOURCES, NOAA FISHERIES, TAKE REDUCTION TEAMS, at http://www.nmfs.noaa.gov/prot_res/PR2/Fisheries_Interactions/ TRT.htm#BottlenoseDolphinTRT (last updated Nov. 2, 2003). (361) See OFFICE OF PROTECTED RESOURCES, NOAA FISHERIES, TAKE REDUCTION TEAMS, at http://www.nmfs.gov/prot_res/PR2/Fisheries_interactions/TRT.htm (last updated Nov. 2, 2003) (listing the six TRTs). (362) 16 U.S.C. [section] 1387(f)(7)(A)(i) (2000). For strategic stocks "where the human-caused mortality and serious injury" is less than the PBR, TRTs have eleven months to develop a draft plan. Id. [section] 1387(f)(8)(A)(i). (363) Id. [section] 1387(f)(7)(B)(i). (364) Id. (365) Id. [section] 1387(f)(7)(B)(ii)-(C). (366) Id. [section] 1387(f)(7)(E). (367) It should be noted that the 1996 SFA created the authority for Councils or the Secretary to create groups similar to TRTs, "fishery negotiation panels" (FNPs), to develop proposals for conservation and management measures in the development of fishery management plans. 16 U.S.C. [section] 1855(g) (2000). The SFA did not, however, provide for a range of interests to be represented on the fishery panels as the MMPA does in the case of TRTs. Implementing regulations provide that the membership of the panels be composed of individuals representing "interests that are likely to be significantly affected by the conservation and management measure." 50 C.F.R. [section] 600.753(a)(3)-(4) (2002). The regulations provide a mechanism for application or nomination of individuals to the panel when groups or individuals feel that their interests will not be adequately represented by the members proposed by the Secretary. Id. [section] 600.753C0) (2002). To date, no notice of intent to establish an FNP has been published in the Federal Register. The Magnnson-Stevens Act also provides that advisory panels, "balanced in its representation of commercial, recreational and other interests," 16 U.S.C. [section] 1852(g) (2000), be established to assist in development of FMPs. Id. [section] 1854(g)(1)(B). (368) "The original Take Reduction Teams included 39% fishing industry, 20% academic/scientific, 19% state, 14% environmental/conservation, 7% fisheries council, 1% non-NMFS federal representatives." RESOLVE REPORT, supra note 359, at 5. (369) 16 U.S.C. [section] 1387(f)(7)(B)(ii) (2000). (370) Id. [section] 1387(f)(7)(A)(ii). "Three of the five teams reached consensus on a management plan to reduce incidental take of marine mammals by fishing activities. One team reached partial consensus and a third did not reach consensus on recommendations for reducing incidental take. The teams that did not reach full consensus delivered a report to the NMFS describing differences and points of agreement." RESOLVE REPORT, supra note 359, at i. (371) 16 U.S.C. [section] 1387(f)(9) (2000). (372) Members of TRTs are to include representatives of appropriate regional FMCs, Id. [section] 1387(f)(6)(C), and the Secretary must consult with appropriate FMCs and TRTs before issuing emergency regulations ff he finds that fishing is having "an immediate and significant adverse impact on a stock or species." Id. [section] 1387(g)(1)-(2). (373) See generally Nina M. Young, The Conservation of Marine Mammals Using a Multi-Party Approach: An Evaluation of the Take Reduction Team Process, 6 OCEAN & COASTAL L.J. 293 (2001) (discussing the successes and failures of TRP implementation); RESOLVE REPORT, supra note 359, at 12, app. 3, Survey Respondents' Comments. (374) RESOLVE REPORT, supra note 359, at 12. (375) Id. at 10-11. (376) Id. at ii, 18. See also Young, supra note 373, at 345-46. (377) Young, supra note 373, at 342, 346; RESOLVE REPORT, supra note 359, at 19. (378) HERMAN MELVILLE, MOBY DICK (1851). (379) SEBASTIAN JUNGER, THE PERFECT STORM (1997). (380) Some commentators have also observed that this independence and culture make fishermen "ill-suited" to adapt or retrain for alternative occupations: Problematic characteristics for retraining of fishers arise from their collective cultural values. These include independent natures, difficulty in relating to support personnel who come with a different worldview, linguistic barriers to retraining, unfamiliarity with set (clocked) schedules within a workplace, and the view by fishers 40-45 years of age that participating [in retraining] means you have given up on fishing and will subsequently lose face in front of your peers. Christopher L. Dyer & John J. Poggie, The Natural Resource Region and Marine Policy: A Case Study From the New England Groundfish Fishery, 24 MARINE POLICY 245, 253 (2000). (381) 16 U.S.C. [section] 1853(a)(9) (2000). (382) Id. [section] 1851(a)(8). See generally Michael C. Laurence, A Call to Action: Saving America's Commercial Fishermen, 26 WM. & MARY ENVTL. L. & POL'Y REV. 825 (2002) (describing the implementation of National Standard 8 and supporting government reduction of fishing capacity as a final, viable option for saving fishermen and fishing communities). (383) Natural Res. Def. Council v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000). (384) 50 C.F.R. [section] 600.345(b) (2004). (385) 16 U.S.C. [section] 1202(16) (2000). (386) It should be noted that a similar issue arises in defining the "relevant universe" of small businesses under the Regulatory Flexibility Act, 5 U.S.C. [subsection] 601-612 (2000). (387) For example, in some areas a fishing "community" may be town where fishing is a dominant occupation, but in a small fishery, the members of the "community" having a "common dependency" on the fishery may be spread among a number of coastal towns throughout a region, rather than being concentrated in one place. 16 U.S.C. [section] 1202(16) (2000). (388) 50 C.F.R. [section] 600.345(b)(3) (2004). (389) See Recreational Fishing Alliance v. Evans, 172 F. Supp. 2d 35, 52 (D.D.C. 2001) (holding that the Highly Migratory Species Fishery Management Plan adequately accounted for the economic impact on retention limits on economically dependent recreational fisheries). (390) 27 F. Supp. 2d 650 (E.D. Va. 1998). (391) Id. at 661. (392) Id. at 663. (393) 165 F. Supp. 2d 148 (D.R.I. 2001). (394) Id. at 183-84. (395) No. Civ. 00-007-M, 2002 WL 1005105 (D.N.H. May 16, 2002). (396) Id. at *26. (397) 5 U.S.C. [section] 601-612 (2000). (398) Id. [section] 601. See generally M. Jean McDevitt, Comment, Impact of the Regulatory Flexibility Act on the Implementation and Judicial Review Provisions of the Magnuson-Stevens Fishery Conservation and Management Act, 6 OCEAN & COASTAL L.J. 371, 377-78 (2001) (discussing other goals of the RFA, including improving overall regulatory compliance and at lower costs). (399) 5 U.S.C. [section] 604 (2000). (400) Id. [section] 606. (401) A.M.L. Int'l Inc. v. Daley, 107 F. Supp. 2d 90, 108 n.29 (2000) (quoting 140 Cong. Rec. E964 (May 18, 1994) (remarks of Rep. Hamilton)). (402) 16 U.S.C. [section] 1371(b) (2000). (403) Id. [section] 1371(b)(1)-(2). (404) 16 U.S.C. [section] 1539(e) (2000). (405) The concept of "subsistence" continues to be a controversial issue. Some environmental groups allege that the take of some species under the subsistence exceptions is excessive and unwarranted. See MMPA REAUTHORIZATION ISSUES, supra note 196, at 29. (406) The following chart sets out some incomplete data from 1998-2000 Alaska Native Harvests provided in the 1999-2000 MMPA ANNUAL REPORT, supra note 111, at 69-72:
Bowhead Whales Beluga Whales (western AK) Northern
(Balaena mysticetus) Fur Seals
Harvested struck/lost Harvested (struck/lost) Harvested
1998 41 -- 1,553
1999 42 299 1,193
2000 35 238(39+)
The hunting of walrus, which are hunted primarily for their tusks and secondarily for their pelts, has been criticized particularly as excessive and wasteful. In one recent year, the kill for two St. Lawrence Island communities was reported at 2,000 animals. MMPA REAUTHORIZATION ISSUES, supra note 196, at 29. NMFS often has insufficient data, however, on native take for management purposes. Id. at 26. (407) 1999-2000 MMPA ANNUAL REPORT, Supra note 111, at 72. (408) 16 U.S.C. [section] 1371 (2000). (409) 16 U.S.C. [section] 1539(e)(4) (2000). (410) See infra notes 429-38 and accompanying text (discussing preemption). State regulation of endangered species is not preempted by the ESA. (411) See generally 1999-2000 MMPA ANNUAL REPORT, supra note 111, at 68-72. (412) 16 U.S.C. [section] 1388(a) (2000). (413) Id. [section] 1388(b). (414) 1999-2000 MMPA ANNUAL REPORT, supra note 111, at 68-69. (416) 16 U.S.C. [section] 1853(a)(2) (2000). (416) All FMPs must comply with national standards and "other applicable law." "Other applicable law" includes treaties with Indian tribes. See Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir. 1995) (holding that the executive order granting the Hoopa Valley and Yurok Tribes fishing rights is "any other applicable law" under the Magnuson Act); Wash. State Charterboat Ass'n v. Baldrige, 702 F.2d 820, 823 (9th Cir. 1983) (stating the Stevens Treaties providing Northwest Indian tribes fishing rights is "any other applicable law" under the Magnuson Act and that "each fishery management plan ... shall be consistent" with those treaties). (417) See United States v. Winans, 198 U.S. 371, 384 (1905) (holding that Indian fishing treaties granted tribes the right to take fish "at usual and accustomed grounds" and that "fish wheels" constructed where tribes had historically fished were an unlawful infringement of the tribes right to fish "at usual and accustomed grounds"); Puyallup Tribe v. Dep't of Game of Wash., 391 U.S. 392, 397 (1968) (holding that the State of Washington could not eliminate the right of Puyanup and Nisqually tribes to take fish at "usual and accustomed grounds," but a state could within its police power enact state conservation measures that restricted the "manner" in which fish were taken so long as such conservation measures do not discriminate against Indian tribes); Dep't of Game of Wash. v. Puyallup Tribe, 414 U.S. 44, 48 (1973) (holding that a state conservation measure forbidding fishing by net, but not by line or hook, violated a treaty between the United States and the Puyallup Indian Tribe by discriminatorily prohibiting the tribe's method of fishing); Puyallup Tribe v. Dep't of Game of Wash., 433 U.S. 165, 175 (1977) (holding that Washington's conservation measure limiting the number of steelhead (Oncorhychus mykiss) which could be taken by fisherman fit within the state's conservation goals and did not discriminate against tribe); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 705 (1979) (holding that Indian treaties grant the Indian tribe the right to harvest a share of each run of fish that pass through tribal fishing areas). See generally O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties, 27 AM. INDIAN L. REV. 281, 281 (2002/2003) (arguing that "the fishing right guaranteed by the fishing clause of the Stevens Treaties between the United States and the Indians of Western Washington should be considered a trinity of rights: a right of access, a right of equitable apportionment, and a habitat right). (418) Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. at 683-86. (419) State waters extend three nautical miles offshore, except that Florida's and Texas's waters in the Gulf of Mexico extend to nine miles. See supra note 21. In 1988, President Reagan announced the extension of the United States territorial sea to 12 miles by Presidential Proclamation No. 5928. The Proclamation stated that it applies only for international purposes and that it does nothing to alter domestic law. A number of statutes, including the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 101 Stat. 1317, and the recent Maritime Transportation Security Act of 2002, Pub. L. No. 107-295, [section] 104, 116 Stat. 2064, 2085, are extending United States territorial waters to 12 miles for domestic purposes as well. These laws do not address the issue of the extent of state waters or jurisdiction. If the United States continues to extend domestic jurisdiction for other purposes, the question of whether state jurisdiction and boundaries should also be extended will likely become a major issue, particularly in regard to fishery management. (420) 16 U.S.C. [section] 1856(b) (2000). (421) Pub. L. No. 94-265, [section] 306(a), 90 Stat. 331, 335 (1976). (422) Id. (423) 16 U.S.C. [section] 1856 (2000). (424) See, e.g., People v. Weeren, 607 P.2d 1279, 1286 (Cal. 1980) (stating that being "registered" was not limited to carrying U.S. documentation or state registration and identification, but included California permits for commercial swordfishing purposes), cert. denied 449 U.S. 839 (1980). (425) 16 U.S.C. [section] 1856(a)(3)(A) (2000). (426) Id. [section] 1856(a)(3)(A)(i). (427) Id. [section] 1856(a)(3)(B). (428) While it is clear that less restrictive regulation would not be consistent with the conservation regime of FMPs, it is not entirely clear that more restrictive state regulations are inconsistent. Several courts have held that because the purposes of the Magnuson-Stevens Act include developing the fishing industry, state regulations that restrict fishing in the EEZ beyond the level allowed in federal FMP are inconsistent. See, e.g., Southeastern Fisheries Ass'n, Inc. v. Chiles, 979 F.2d 1504, 1510 (11th Cir. 1992) (holding that state daily landing limits for Spanish mackerel (Scomberomorous macubtus) conflict with the federal annual quota); State v. Sterling, 448 A.2d 785, 757 (R.I. 1982) (holding that state landing limits for yellowtail flounder restricting the allowable catch without regard to area of capture conflicts with the federal limit); Vietnamese Fishermen Ass'n of Am. v. Cal. Dep't of Fish & Game, 816 F. Supp. 1468, 1475 (N.D. Cal. 1993) (finding conflict when state law prohibited use of gillnets below a certain latitude and federal law permitted gill nets in the same area). Less direct questions have arisen even about whether state laws that prohibit landings of fish which can be legally harvested in the EEZ under the FMP are consistent. In one case, for example, four out of five Gulf states prohibited or restricted landing of redfish even though the fish could be harvested in the Gulf of Mexico under the FMP. Southeastern Fisheries Ass'n v. Mosbacher, 773 F. Supp. 435, 440 (D.D.C. 1991). The language in the original Act concerning no "Indirect regulation" in the EEZ of vessels not registered in the state called into question the use of landing laws, the most effective and efficient state enforcement mechanism. Although these laws operate indirectly to regulate vessels beyond state jurisdictions, courts have long held them to be both necessary for enforcement and constitutional. See Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426-27 (1936) (upholding state act to the extent the act deals with fish brought into the state from outside state waters). Most states made the issue moot, however, by defining "registered" for purposes of the Act to include vessels owned by parties who have landing or wholesale licenses. The 1996 revisions of the provision deleted the language concerning direct or indirect regulation. Instead, the SFA included a number of instances where the state will have jurisdiction and authority to regulate vessels not registered in the state in the EEZ beyond state waters. These include several specifically designated areas and instances in which the FMP for a fishery delegates management of the fishery to a state and the state's management plan is consistent with the FMP. 16 U.S.C. [section] 1856(a)(3)(B)-(C) (2000). Again, the term "consistent" is not defined. (429) 16 U.S.C. [section] 1379(a) (2000). (430) Id. [section] 1456(c). (431) 941 P.2d 154 (Alaska 1997). (432) Id. at 158. (433) Id. at 160-66 (Shortell, J., dissenting). (434) 16 U.S.C. [section] 1379 (2000). (435) Management of walrus was transferred to Alaska in 1975. However, in People of Togiak v. United States, 470 F. Supp. 423 (D.D.C. 1979), the court found the ESA preempted regulations that purported to transfer authority to the state, which would prohibit subsistence hunting by Alaskan Natives. The court succinctly stated the basic policy conflict as follows: Substantively, two major competing policy considerations are here involved the need for protecting marine mammals from depletion, on the one hand, and the responsibility of the federal government to protect the way of life of the Alaskan Natives, including their tradition of hunting marine mammals for their subsistence, on the other. What emerges vividly from an examination of the total statutory scheme is that the Congress carefully considered these competing considerations and deliberately struck a balance which permits continued hunting by the Alaskan Natives as long as this is done in a non-wasteful manner, is restricted to the taking of non-depleted species, and is accomplished for specified, limited purposes. It is also clear that, to the extent that it was necessary to do so, Congress intended to preempt the field so as to eliminate inconsistent State regulation while permitting regulation which complements the statute's design. Id. at 426-27. (436) 16 U.S.C. [section] 1535(f) (2000). The section even extends to state regulation of takings by Native Alaskans who would otherwise be exempt from the ESA. (437) Id. [section] 1535(a). (438) Id. [section] 1535(c). (439) ECOSYSTEMS MANAGEMENT REPORT, supra note 202, at 4. (440) See generally Ellen K. Pikitch, The Scientific Case for Precautionary Management: Current Fishery Problems Traced to Improper Use of Science, in MANAGING MARINE FISHERIES IN THE UNITED STATES: PROCEEDINGS OF THE PEW OCEANS COMMISSION WORKSHOP ON MARINE FISHERY MANAGEMENT 59 (2002) (recommending precautionary approaches to fishery management because improper use of scientific information could lead to declines or collapses in fish populations). (441) ECOSYSTEMS MANAGEMENT REPORT, supra note 202, at 23. (442) Id. at 23. (443) See supra notes 204-13 and accompanying text. (444) ECOSYSTEMS MANAGEMENT REPORT, supra note 202, at 28. (445) Id. at 29. (446) Id. at 30. (447) Id. at 30-31. (448) Id. at 31. (449) Id. (450) Id. at 31-32. (451) Id. at 32-33. (452) A healthy ecosystem may potentially involve managed, directed taking of certain populations of protected species, as well as exploitable species, to maintain ecosystem balance. (453) Appropriate protections may include, among other measures, closures during certain periods and regulation of gear destructive to the habitat. (454) See generally STEPHEN R. PALUMBI, PEW OCEANS COMMISSION, MARINE RESERVES: A TOOL FOR ECOSYSTEM MANAGEMENT AND CONSERVATION (2002). (455) 16 U.S.C. [section] 1855(b)(2) (2000). (456) See id. [section] 1855(b)(4)(B) (requiring agencies to provide a detailed, written response giving reasons for not following the Secretary's recommendations and describing mitigative actions they will take). (457) NOAA Fisheries or the comparable agency renamed to reflect its responsibilities. (458) See generally Holly Doremns, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Pokey, 75 WASH. U. L.Q. 1029 (1997). (459) See supra notes 356-62 and accompanying text. (460) See 16 U.S.C. [section] 1856(b) (2000) (providing that the Secretary may authorize federal regulation of a state's fisheries where fishery management plans are not being effectively carried out by the state). (461) Id. [section] 1856(a)(3)(B). DONNA R. CHRISTIE * * Donna R. Christie, 2004. Elizabeth C. & Clyde W. Atkinson Professor of Law, Florida State University College of Law. B.S., 1969, University of Georgia (Chemistry). J.D., 1978, University of Georgia. Post Doctorate, 1978-1980, Woods Hole Oceanographic Institution (Marine Policy and Ocean Management). |
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