Living marine resources management: a proposal for integration of United States management regimes.

• Author: Christie, Donna R.

1. 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.

2. AN OVERVIEW OF THE PRIMARY STATUTES GOVERNING MANAGEMENT OF MARINE LIVING RESOURCES

   1. 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...