Steller sea lions: the effects of multi-statute administration on the role of science in environmental management.

• Author: Halpern, Marc

I

INTRODUCTION

On July 13, 1999, January 25, 2000, and July 19, 2000, the Federal District Court of Western Washington held that the National Marine Fisheries Service ("NMFS") failed to comply with its obligations under the Endangered Species Act ("ESA") and the National Environmental Policy Act ("NEPA") concerning two Alaskan groundfish fisheries ("Alaskan Fisheries") and their interactions with the Steller sea lion ("Steller"). (2) These rulings were the latest and most politically charged events in the extensive administrative and judicial legal history surrounding the Stellers and the Alaskan Fisheries, stretching back to their initial comprehensive regulation in the late 1970's. During those two-plus decades a single federal agency, the NMFS, has held the numerous, changing, overlapping, and sometimes conflicting administrative responsibilities in both regulating the Alaskan Fisheries and protecting the Stellers. Over the same time period, Steller populations rapidly and steadily declined, and continue to decline today, (3) despite the application of the ESA, the NEPA, and the Marine Mammal Protection Act ("MMPA") with their various provisions for environmental analysis and regulation for conservation using the best available science.

This paper examines the effects of the diversity of the NMFS's statutory responsibilities on the use of science in protecting the Steller. This introductory section continues with descriptions of the Steller, the fish, and the Alaskan Fisheries. Section two details the legal history, statute by statute, of the Steller and the Alaskan Fisheries and then briefly summarizes important events and decisions in an integrated time line. Section three analyzes the role of science in the legal decisions surrounding the Stellers and hypothesizes some effects of multi-statutory management in this case-study. The final section offers a brief policy analysis of those possible effects.

The Steller Sea Lion

The Northern or Steller sea lion (Eumetopias jubatus) is the largest of the sea lions, measuring up to 11 feet long and weighing up to a ton. (4) Its closest living relatives include the fur seals and other seal lions, from which it diverged at least 3 million years ago. (5) Stellers look very similar to the familiar California sea lion, except are roughly twice the size and the male bulls have no head crest. (6) Stellers feed on a variety of prey items including fish and mollusks. (7) Groundfish including Walleye pollock and Atka mackerel represent a significant portion of their diet. (8)

The Stellers are found in coastal areas along the Northern Pacific Rim, from Southern California to Northern Japan, with the center of their distribution in the Gulf of Alaska and Aleutian Islands. (9) Along their range, Stellers divide into two reasonably distinct population segments, a Western population and an Eastern population. (10) Over the last three decades, the Western population of Stellers has declined as much as 80% from the hundreds of thousands to the tens of thousands. (11) Meanwhile the Eastern population of Stellers actually has increased slightly from around fifteen thousand to around twenty thousand individuals. (12)

Walleye Pollock

Walleye pollock or Alaskan pollock are bottom-dwelling fish belonging to the cod family. (13) Their range extends throughout the North Pacific. (14) The younger pollock school mostly in the mid-water column and feed on small invertebrates. (15) As they age, pollock spend more time further and further down in the water column and increasingly feed on fish, including smaller Walleye pollock. (16) Spawning usually begins in February and continues, moving northward, until early summer. (17) Walleye pollock populations have fluctuated significantly in recent years. (18) For example, in the east Bering Sea, the population was 2 million metric tons (mmt) in the mid 1960's, 8 mmt in 1971, 4 mmt in 1978, 14 mmt in 1984, 8 mmt in 1990, 12 mmt in 1993, and down to 7 mmt in 1997. (19) Walleye pollock's main predators include marine mammals, sea birds, other fish, and man. (20)

Atka Mackerel

Atka mackerel are bottom-dwelling fish belonging to the greenling family. (21) Their range extends throughout much of the North Pacific with a center of abundance in the Aleutian Islands. (22) The Atka mackerel spend most of the year in the open ocean but move to shallower waters to spawn in late summer. (23) During spawning, the mackerel aggregate into dense schools near the ocean bottom. (24) Atka mackerel populations have fluctuated significantly in recent years. (25) For example, the estimated population in the Bering Sea/Aleutian Island area has fluctuated from 1 mmt in 1981 to 0.75 mmt in 1986 to 1.3 mmt in 1991 and then down to 0.6 mmt in 1998. (26) Atka mackerel's main predators include marine mammals, other fish and man. (27)

North Pacific Fishing Industry

The North Pacific covering the east Bering Sea/Aleutian Island region ("BSAI") and the Gulf of Alaska ("GOA") contains the largest fishing industry in the United States. (28) The major target species is the Walleye pollock. (29) Over the last two decades, fishers have caught an estimated 7-15% per year of the pollock in the east Bering Sea area of the BSAI. (30) During a similar period fishers caught an estimated 4-10% per year of the pollock in the GOA. (31) The pollock are marketed frozen and processed into fillets, blocks and surimi. (32) Also, their roe have a significant market and can fetch high prices relative to the meat of the fish. (33) Other significant North Pacific fisheries include Atka mackerel, Pacific cod, and Flatfish. (34) The predominant catch method in all the fisheries is trawling, which involves towing enormous scoop-shaped nets to trap fish. (35)

The Alaska pollock fishery has been one of the largest Alaskan fisheries for a long time but has changed in many other ways over the past three decades. Until the 1970's, few American vessels caught and processed fish off Alaska. (36) Numerous foreign vessels, however, targeted pollock in the BSAI. (37) Declines in pollock abundance by the early 1970's lead the NMFS, as the overseer of domestic fisheries, to require lower catches. (38) Concurrently, the same vessels began fishing smaller numbers of pollock in the GOA. (39) The mid-1970's saw increased United States interest in fisheries development. (40) The NMFS, as the regulatory agent of this new mandate, allocated more and more of the Alaskan pollock fishery to joint-venture operations between domestic fishers and foreign processing ships. (41) Over the decade that followed, the domestic fishers subsumed the processing business as well. (42) By the late 1980's the Alaskan pollock fishery was almost entirely domestic. (43)

When and where vessels fished for the pollock also changed. Until the late 1980's the pollock fishery operated mostly in spring and summer. (44) As the fishery started targeting more valuable roe-bearing fish, however, more and more of the total catch came during fall and winter. (45) The NMFS ultimately split the pollock fishery into multiple seasons because of the expanded winter roe harvest. (46) Meanwhile, as the pollock fishery increasingly exploited near-shore spawning aggregations more and more fishing effort occurred closer to shore and closer to Steller habitat. (47)

The fleet composition of the pollock fishery also changed significantly. Throughout much of the 1970's and 1980's, on-board processing vessels dominated the fishery. (48) More recently, however, shore-based processors partnered with catch-only vessels have replaced many of the processing vessels. (49) By 1996, for example, of the 166 vessels or plants in the BSAI pollock fishery there were 8 onshore plants, 37 catcher-processors, 118 catcher-only vessels, and 3 processor-only vessels. (50)

The Alaskan Atka mackerel fishery is the other fishery of central importance to the case study but has always been much smaller and more localized than the pollock fishery. (51) Most of the fish are caught at recurring aggregation sites in the BSAI. (52) Most of these locations are in Steller habitat. (53) A couple dozen large catcher-processor vessels dominate the mackerel fishery. (54) For many years the mackerel season occurred in spring and summer. (55) In the last decade, however, the season has moved earlier and compressed into March and April. (56)

II.

FIVE STATUTES, TWO DECADES OF MANAGEMENT

This section summarizes the history of the NMFS management of the Alaskan Fisheries and the Steller under five different federal statutes. Rather than presenting a straightforward chronology, however, this section purposefully offers discrete administrative histories for each statute. Accompanying these histories are brief explanations of relevant components of the statutes themselves. The author acknowledges that this separation by statute may prove less tractable to the reader seeking a unified administrative history up front. This paper, however, concerns the effects of multi-statutory administration by a single agency. The result is no different than five independent agencies each administering separate statutes. The immediate subdivision by statute is, therefore, the necessary organization of background information from which to launch the historically integrated analysis in the next section. For summary and easy reference, this section concludes with a combined bullet-point chronology.

The Magnuson Act and Amendments ("MSA") (57)

The Magnuson Act of 1976 establishes the legal framework for the federal management of the Alaskan Fisheries. Its stated purposes include establishing a national program for the management of fisheries resources, developing underutilized or not utilized fisheries, and collecting reliable data essential to the effective management and scientific understanding of fisheries resources. (58) As a curious indication of the importance of the Alaskan groundfish fishery, it is the only...