Scientific certainty thresholds in fisheries management: a response to a changing climate.

• Author: Kutil, Sarah M.

1. INTRODUCTION REGULATORY AUTHORITY AND NPFMC's CERTAINTY THRESHOLD A. The Magnuson-Stevens Act. B. Implementation of the Magnuson-Stevens Act C. NPFMC's Closure of the Arctic Management Area D. The Arctic FMP and the Magnuson-Stevens Act III. INTERNATIONAL FISHERIES ORGANIZATIONS AND AGREEMENTS A. International Pacific Halibut Commission and the Convention on the Conservation and Management of the Pollock Resources in the Central Bering Sea B. The U.N. Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks C. The Code of Conduct for Responsible Fisheries IV. NPFMC AND CLIMATE CHANGE A. Effects of Climate Change on Fisheries 1. Ocean Warming. 2. Ocean Acidification 3. Ocean Circulation 4. Exacerbation of Existing Stress to Fish Stocks B. Management Response to Climate Change Using Certainty Thresholds V. TOWARD A PROACTIVE RESPONSE TO CLIMATE CHANGE VI. CONCLUSION I. INTRODUCTION

   On August 17, 2009, the North Pacific Fishery Management Council (NPFMC or the Council) bucked decades of reactive fishery management by closing 150,000 square nautical miles to commercial fishing because of overwhelming uncertainty in data. (1) In the absence of regulation, marine fisheries are open to free exploitation. (2) Although the closed area has not yet supported a commercial fishing industry, (3) NPFMC expects that warming conditions, reduced ice cover, and the altered ranges of fish stocks due to climate change may bring commercial exploitation to the area in the future. (4) Regardless of whether an entrenched and invested commercial interest is present, closing a fishery (5) has the same regulatory effect--restricting the traditional right of free access to marine fisheries. Can NPFMC's closure be the beginning of a new proactive regulatory standard in fisheries management?

   The Secretary of Commerce apparently agreed with NPFMC's predictions as to the future exploitability of the closed area by approving this unprecedented (6) precautionary closure of the Chukchi and Beaufort Seas to commercial fishing. (7) The Chukchi and Beaufort Seas together make up the Arctic Management Area, Which extends out 200 miles from the northern coast of Alaska. (8) Recognizing that there exists a substantial degree of scientific uncertainty as to the types and respective statuses of fish stocks in the Arctic Management Area, NPFMC opted to preemptively close it to commercial fishing to avoid unregulated development and its possible adverse effects on the ecosystem. (9) NPFMC's decision to close the Arctic Management Area is unprecedented and unique because fisheries management is generally reactive, not proactive, (10) and because this is the first closure of a fishery due to climate change. (11)

   While NPFMC's proactive closure of the Arctic Management Area received overwhelming support within the Council and from industry, environmental groups, tribal representatives, and the public, (12) such a proactive closure is at best a discretionary option under the Council's governing statute, the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act or the Act). (13) NPFMC is a Regional Fishery Management Council (FMC) created by and deriving its authority from the Magnuson-Stevens Act. (14) The Act tasks the Council with preparing a fishery management plan (FMP) for each fishery within its region (15) in need of conservation and management. (16) In the absence of Council or agency regulation, a fishery is open to commercial exploitation. (17) A fishery may be closed under the Act as a discretionary action. (18) Exercising the option of closing a fishery carries with it specific requirements prior to agency approval. (19) First, the Act's closure requirements charge the Council with ensuring that a closure is based both on the best available science and a consideration of the costs and benefits of the closure. (20) Second, a discretionary closure must provide criteria by which to assess its benefit along with a timetable for review of the closure. (21) These criteria, together with provisions of the Act and agency guidelines designed to manage exploitation of fisheries despite vast knowledge gaps and scientific uncertainty, (22) suggest Congressional disfavor for using scientific uncertainty as the sole basis for acting to curb or prohibit commercial fishing. Instead, the Act generally encourages exploitation both as an economic, social, and cultural goal, as well as a means for carrying out scientific research using adaptive management. (23) The Act's requirements for closure of a fishery do not expressly contemplate a proactive measure due to scientific uncertainty such as NPFMC's closure. The Act instead presumes unfettered use of fisheries, favoring reactive measures when exploitation results in depleted fish stocks. (24) Given this incongruence between the spirit of the Act and the Council's decision to close the Arctic Management Area, the Council's closure cannot be attributed solely to compliance with the provisions of the Magnuson-Stevens Act.

   The Magnuson-Stevens Act is not the only regulatory regime affecting U.S. fisheries; there are four important international organizations and agreements applicable in the Arctic, (25) but none of these regulatory regimes and frameworks alone provides an additional basis for the Council's action. Rather than mere compliance with a national or international regulatory directive or suggestion, the Council's decision should thus be seen as NPFMC's and the National Marine Fisheries Service's (NMFS) direct response to rapidly changing environmental conditions and the uncertainty associated with such changes.

   NPFMC's decision to use its discretionary authority to close the Arctic Management Area implies a scientific certainty threshold that scientific data must satisfy before exploitation of a stock can occur. Because NPFMC instituted this threshold as an adaptation to climate change and not in response to statutory or regulatory directives, it should serve as a model for dealing with increasingly high uncertainty levels in fisheries management. Climate change promises to alter both marine habitats and essential characteristics of stocks to the extent that stocks considered "known"--because sufficient data are available--may effectively become unknown without aggressive monitoring and data collection programs. In order to maintain sustainability and avoid collapse of the nation's fisheries, it is imperative that national regulations require Councils to cease or pause commercial fishing when uncertainty in the data on fish stocks reach a predetermined threshold level. Because scientific uncertainty as to fish stocks is essentially a problem of scientific indeterminacy, (26) it does not lend itself to measurement using probability or other statistical methods for measuring uncertainty. (27) Instead, predetermined levels of certainty in scientific data could be established by analogy to a defined baseline of data--a sort of ideal data set. If there are too many unknowns for a given stock so that the qualitative certainty level is unknown or not satisfied, fishing for the stock would be suspended, thus using the certainty level as a threshold. The Magnuson-Stevens Act or, more likely, its implementing regulations should require scientific certainty thresholds for allowing commercial exploitation of fish stocks to prevent irreversible effects or collapse.

   Part II of this Comment begins with a discussion of the Magnuson-Stevens Act and its implementing regulations. Part II also characterizes the Council's preemptive closure of the Arctic Management Area as an example of a precautionary scientific certainty threshold, establishing a level of scientific certainty required before management or exploitation can occur even in an adaptive management context. Because the Council's proactive closure exceeds the Magnuson-Stevens Act's conservation requirements, Part III turns to international agreements such as the United Nations Code of Conduct for Responsible Fisheries (28) and the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (29) to determine the role of precautionary fisheries management outside of the Magnuson-Stevens Act. Part IV examines the projected effects of climate change on marine fisheries, and argues that NPFMC's response in closing the Arctic Management Area was appropriate and should serve as a model management response to increased uncertainty because of climate change. To require other management bodies to respond to changing conditions, as NPFMC has done, Part V suggests that future ocean policy should expressly direct regional fishery management bodies to establish precautionary scientific certainty thresholds similar to that used by NPFMC in its proactive closure of the Arctic Management Area. In so doing, fisheries managers would have both the ability and the responsibility to proactively respond to the scientific uncertainty that accompanies rapid environmental changes.

2. REGULATORY AUTHORITY AND NPFMC'S CERTAINTY THRESHOLD

   Recent amendments to the Magnuson-Stevens Act have increased its conservation focus, (30) but the Act remains inadequate, as evidenced by its failure to provide a framework for or require a scientific certainty threshold such as NPFMC has found necessary to manage fisheries in its region. The Magnuson-Stevens Act does not require any particular level of scientific certainty before exploitation can occur. In fact, the Act promotes just the opposite: it assumes exploitation unless conservation is needed. (31) Instead, the Act should require a specified level of scientific certainty in the data underlying Councils' management decisions. A comparison of history and provisions of the Act and its current implementation with NPFMC's closure of the Arctic Management Area demonstrates the Act's inability to adequately regulate fisheries in the face of changing climatic conditions without...