Transcript Natural Resources Law

Chapter 5
Living Marine Resources
The Collapse of Fisheries
• Over-fishing
– Has led to the collapse of fisheries
– Do we need a sea ethic?
• Drivers of Fishery Collapse
– The erroneous notion that our fisheries were inexhaustible
– Too many boats chasing too few fish Advances in technology make
it easier to find and catch fish
– “Pulse” fishing mostly by developed countries
– Subsidies
• Price supports, tax incentives, low interest loans, grants
– Bycatch
• As much as 25% of fish caught are unwanted but they rarely survive
– Habitat Loss and degradation
• Land-based marine pollution
The Risks from a Fisheries Collapse
• For many developing countries, fish are a
prominent economic resource
– Accounts for substantial % of their foreign
trade
– 100 million jobs associated with fishing
• Fish are the principal source of protein in
the diet of many developing countries
– A loss of fish stocks threatens an essential
part of the food supply for these people
The Aquaculture Alternative
• By 2010 may be 50% of commercial fish value
• But it takes two pounds of sea food to produce one pound
of fish (Is it sustainable?)
– Reduces biomass and available wild fish stocks
– Promotes use of fine mesh nets
• May spread disease and pollution (sea lice, bacteria,
parasites)
• Often destroys mangrove wetlands
• Cross-breeding may impair genetic health of wild stocks
Growth of Salmon Farming
Fisheries and Trade Agreements
• Note that subsidies, which are often designed to
promote stability within the industry, variably
lead to overfishing
– Why?
• So trade standards that limit subsidies may help
promote sustainable fisheries
• But environmental measures that might also
limit fishing (such as dolphin safe nets) are
sometimes viewed as trade barriers
Bioaccumulation
• Bioaccumulation in fish includes two routes of uptake:
aqueous uptake of water-borne chemicals, and dietary
uptake by ingestion of contaminated food particles
• Bioaccumulation can result in contaminant levels that
are thousands of times the levels in surrounding water
• Migrating eels from Lake Ontario introduce Mirex into
beluga whales
• Great Lakes fish unsafe for pregnant woman and
children
– http://www.erieforum.org/fishguide/fishguide.php
Fisheries Science Primer
• What is “recruitment overfishing”?
• What is “growth overfishing”?
• What is the “maximum sustainable
yield”?
Maximum Sustainable Yield
• The highest average yield over time that does not
result in a continuing reduction in stock
abundance
• Scientists generally produce a range of estimates
for MSY based on different assumptions
– If the higher estimates are used for setting quotas, the
risk of overfishing and short-term socio-economic and
political benefits may be higher
– If the lower estimates are used, the risk of overfishing
and the loss of long-term socio-economic and political
benefits may be lower
Maximum Sustainable Yield
Difficulty in determining the MSY
• Detailed information must be known –
– About the fishery
• Age structure, spawning age and spawning behavior, fecundity, male
to female ratio, natural and fishing mortality rates, growth rates,
feeding habits, migratory patterns, total weight of fish caught
– As well as the people fishing
• How much they catch, equipment used, what are their markets, what
is the value of the fish, where is it caught
– What happens when there is not adequate information?
• Time lag between fishery decline and lower catch
• What options are available if you lack adequate data?
• Catch per unit effort (CPUE) data
Pisaster Sea Star Experiment
• Removal of the Pisaster reduced biodiversity of the tide polls by more
than half
• The Pisaster preferred mussels; without it the mussel population
exploded
• Similarly, hunters decimated sea otter populations along the California
coast which caused sea urchin populations to explode
• Because sea urchins eat kelp the kelp beds were destroyed by
overgrazing and the diverse fish populations supported by the kelp
beds were lost
Complexity and Uncertainty
• Multiple species issues only add to the
complexity of studies
• Trade groups pressure agencies to use
anecdotal evidence as the best information
available
– But the trade groups have an inherent conflict of
interest
• Should the precautionary principle be employed?
Fishery Management Tools
• Total Allowable Catch (TAC)
– An annual quota of catch for each species
– Can be broken down into individual vessels, or based
upon fleet totals
– Note the difficulty of enforcing a fleet-wide restriction
• Leads to unsafe “derby fishing”
• Restrictions
– Seasons restrictions (May cause market glut)
– Entry restrictions
– Area restrictions
– Gear restrictions
• Vessel buy-back schemes rarely reduce capacity for long
Individual Transfer Quotas (ITQs)
• Individual transfer quotas
– A system in which individual fisheries license holders
are assigned fractions of the TAC adopted by
fisheries managers, and these quotas are
transferable among license holders by sale or lease
– What you don’t catch this year, will be bigger next
year
• What problems do you see with ITQs?
– To what extent does the CDQ solve these problems?
• What problems do CDQs raise?
– Would community ownership of ITQs address some
of the problems with CDQs as suggested by
Professor Reiser?
Marine Protected Areas
• Should the government designate “no
take” zones
– Hawaiian Islands Nat’l Marine Sanctuary
• About 100,000 square miles of small islands and
atolls http://www.hawaiireef.noaa.gov/imagery/rpa.html
• http://www.sanctuaries.nos.noaa.gov/oms/oms.ht
ml
• Why do you think so little water is off-limits to
fishing?
Private Property Rights
• Do we need a system of private property
rights to protect marine resources?
• Should we allow people to homestead
oceans?
– Why should we treat oceans different than
land?
• What objections might you imagine to
this proposal?
Over-fishing Revisited
• Decision over-fishing
– Decision-makers overlook scientific
evidence or are too optimistic in setting the
TAC
• Implementation over-fishing
– Failure to enforce quotas
• Illegal over-fishing
Consumers-Based Initiatives
• “Dolphin friendly” tuna
• SeaWeb concept
– Works with chefs and buyers to let them know
which fish species are being over-fished
– How effective are these campaigns likely to be?
– What problems will they likely encounter?
International Fishery Law
• United Nations Convention on the Law of the Sea (UNCLOS)
(1982)
– Territorial Sea: to 12 nautical miles out
– EEZ: 200 nautical miles out to sea
• These encompass 30% of the world’s seas but 90% of the commercial
fisheries
– High seas: Beyond 200 miles
– Nations must ensure the conservation and utilization of all living
marine resources
• UN Fish Stocks Agreement (1995)
– Straddling and highly migratory fish stocks
– Party states must participate in regional fishery management groups
to gain access to fishery
– Obligates flag states to enforce restrictions and authorizes
– Recognizes authority of regional fishery organizations to take
enforcement action against vessels in the high seas Article 21(1)
• Code of Conduct for Responsible Fisheries (FAO, 1995)
Jurisdictional Boundaries
http://geography.about.com/library/misc/uceez.htm
Note that a nautical mile = 1 minute of latitude or approximately 1.15 miles
B = the low water mark
Contiguous zone may be regulated for environmental, customs, & immigration (Pres. Proc. 1999)
Sustainable Fisheries Act of 1996
• The Sustainable Fisheries Act (Public Law
104-297) reauthorized and amended the
Magnuson-Stevens Fishery Conservation and
Management Act in October 1996, declaring
that –
– “a national program for the conservation and
management of the fishery resources of the United
States is necessary to prevent overfishing, to
rebuild overfished stocks, to insure conservation,
to facilitate long-term protection of essential fish
habitats, and to realize the full potential of the
Nation’s fishery resources.”
Regional Fishery Management Councils
• Eight Councils in U.S. EEZ
• Councils consist of representatives of the commercial
and recreational fishing industries
– FWS sits as non-voting member
– No provision for citizen representative
– Industry representatives are authorized by law to have a
pecuniary interest so long as they disclose it!
• Goal of the Councils is to manage fisheries for
sustainable yields
• Management is accomplished through Fishery
Management Plans (FMPs)
Fishery Management Plans
• Prevent over-fishing and rebuild stocks
• Assess fishery condition and determine the MSY and
optimum yield
• Describe and identify fish habitat and minimize adverse
impacts on that habitat caused by fishing
• Include a fishery impact statement for the plan
– To describe the impacts on individuals and fishery communities
• Specify objective criteria for determining when there is
over-fishing and prevent it
• Establish a standard reporting methodology for bycatch
and include measures to minimize bycatch
• Allocate harvesting restrictions equitably
16 U.S.C. 1853(a).
National FMP Approval Standards
1. Prevent over-fishing while achieving optimal yield
(OY)
2. Best scientific information available must be used
3. Stocks managed as a unit to the extent practical
4. Non-discrimination among residents of different states
5. Efficiency in use of resource as practical
6. Account for variations and contingencies in fisheries
7. Minimize cost and avoid duplication
8. Consider importance to communities and minimize
adverse impacts to communities
9. Minimize by-catch and mortality from by-catch
10. Promote safety of human life at sea
Conflicting Mandates?
• How would you expect RFMCs to
reconcile conflicting mandates?
National Standard One
• Prevent overfishing and achieve optimum yield (OY)
• Overfishing is a rate of fishing that jeopardizes the
capacity of the fishery to produce MSY
• MSY is a theoretical (scientific) concept
– MSY is a ceiling; it is adjusted down to set the optimum
yield (OY) based upon social, ecological or economic
factors
• OY is based upon a political judgment
– And the agency may set an OY for a particular species
below sustainability if necessary to push other fish
stocks up, or protect the ecosystem
National Standard Two
• Decisions based upon best available scientific
information
• But incomplete information does not prevent
approval of an FMP and setting an MSY
• Professor Houck suggests that OY does not
establish an effective brake
– Why not?
– On what basis can a court strike down the OY?
– How much uncertainty is likely to exist – especially
before the fish stock crashes?
National Standard 8
•
Consider importance of fishery resources to
communities and minimize adverse impacts to
communities
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Note that Councils are required to –
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Analyze history, extent, and type of participation within a
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Assess the positive and negative social and economic
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See page 478
Standard 8 must be implemented “consistent with the
conservation requirements of the Act.”
North Carolina Fisheries Ass’n v. Daley
• Concerned NMFS flounder quotas for Eastern Seaboard
– In 1992, NMFS set a rebuilding schedule for flounder stock
– In 1995, NMFS established a fish mortality reduction schedule
• If a state exceeds quotas for a given year these
“overages” are deducted from the initial quota for the
following year to determine the “final” quota
– NMFS set an initial 1997 flounder quota for North Carolina at
3,049,589 lbs. reduced by 1,775,984 lbs. to account for overages
in the 1996 season
– NMFS set an initial 1998 flounder quota for North Carolina at the
same 3,049,589 lbs. reduced by 399,740 lbs. to account for
overages in the 1997 season
• Case initially remanded for an economic study under the
Regulatory Flexibility Act to determine the impact of the
quota rules on small entities
NCFA v. Daley
• Agency found that present losses were offset by past
revenues from overfishing
– That losses of 5% to 60% were widely disseminated
• Court finds that the Secretary abdicated his responsibilities
under the Magnuson Act because of narrow methodology
– Court finds that Secretary should have examined the
impact on processors, wholesalers, distributors,
boatyards, gear shops, ice houses, and other fishery
dependent industries
• Would this place an “undue burden” on agency’s
resources?
– Why wasn’t this information provided in the FMP?
National Provision 9
• Minimize bycatch and bycatch mortality
– Note that Magnuson Act requires a “standardized
bycatch reporting methodology” (SBRM)
• New England Fishery Management Council
continued to rely on log books and federal
observers for bycatch reporting
– 90% fail to report bycatch on logs
• Conservation Law Foundation v. Evans
– Court holds that NMFS must take action to
minimize bycatch
NRDC v. Daley
• NMFS rules established a target fishing mortality
rate of 0.24
– Set quotas at a level to ensure that fishing does not
exceed the target
– NMFS set TAL at 18.52 million pounds
• 18% chance of not exceeding the target
• Would 50% be enough? If not, what?
– Is the TAL reasonable?
• District Court finds that given the competing
mandates (Standards one and eight) the TAL was
reasonable
• Court of Appeals reverses under Chevron Step 2
– Why?
Ecosystem Management
• The Sustainable Fisheries Act requires Councils to “describe and
identify essential fish habitat (EFH) for the fishery” and ensure that
steps are taken to “prevent, mitigate, or minimize any adverse
effects” that fishing activities may have on EFH “to the extent
practicable”
• The use of trawls: http://weblog.greenpeace.org/northatlantic/gallery/
• Trawler Video: http://www.greenpeace.org/international_en/campaigns/intro?campaign_id=461050
• Note that federal agencies that undertake activities that may
adversely impact EFH must consult with NOAA Fisheries, 16 USC
1855(b)(2)
• Note the order by Judge Zilly to protect Stellar sea lions in Alaska
• If you wanted a truly sustainable fishery, how would you manage it?
Case Study: The Red Snapper Fishery
Fishery Management
• Reef permit system (200 lb. limit)
– Promoted “derby fishing”
– Caused dramatic drop in price for snapper because they
all came to market at the same time
• Endorsement program (2,000 lb. limit)
– In addition to permit had to show evidence of at least
5,000 lbs of landings in 2 of 3 years
• ITQ program moratorium imposed by Congress in 2000
– What were the objections?
– Some small fisherman; fish processors
• Recreational Fishery
– Size and bag limits
Problems
• Sustainable TAC for red snapper?
– Allocated 51% to commercial fishery; 49% to
recreational fishery
– Total harvest has exceeded
• Trawling and bycatch
– 4;1 ratio of bycatch to shrimp
– Shrimpers resist restrictions
• Bycatch reduction devises
• Seasonal limits
• Area closures
– http://www.greenpeace.org/international_en/campaigns/i
ntro?campaign_id=461050
Managing for the 1998 Season
• Allowable biological catch between 3-6 million pounds
• Gulf Council voted 15-2 to maintain the existing TAC of
9.12 million pounds
– Justified because trawlers would be required to use
BRDs
• Should ratio between commercial and recreational fishing
be changed?
• Can derby mentality be eliminated in commercial fishery
without an ITQ?
• How can you regulate recreational fishers effectively?
Marine Mammals
• Cetaceans
– Toothed whales include dolphins, porpoises, and killer whales
– Baleen whales include gray, right, humpback
• At the turn of the 20th century several species on verge of extinction
– 1931 Convention for the Regulation of Whaling
– 1946 International Convention on the Regulation of Whaling
• Established the International Whaling Commission (IWC)
• Imposed a moratorium on commercial whaling in 1986
• Currently 39 active members including most major whaling
countries
– Iceland dropped out in 1990 (readmitted in 2002), and
Norway has (legally) resumed whaling because it formally
objected to moratorium
– Japan is the only country with a permit to whale. Japan
allegedly gave aid to countries as an enticement to join the IWC
and vote for Japan’s permits
The ICRW
The Convention: Article V
1.The Commission may amend from time to time the provisions of the
Schedule by adopting regulations with respect to the conservation and
utilization of whale resources, fixing (a) protected and unprotected
species; (b) open and closed seasons; (c) open and closed waters,
including the designation of sanctuary areas; (d) size limits for each
species; (e) time, methods, and intensity of whaling (including the
maximum catch of whales to be taken in any one season); (f) types and
specifications of gear and apparatus and appliances which may be
used; (g) methods of measurement; and (h) catch returns and other
statistical and biological records.
2.These amendments of the Schedule (a) shall be such as are necessary
to carry out the objectives and purposes of this Convention and to
provide for the conservation, development, and optimum utilization of
the whale resources; (b) shall be based on scientific findings; (c) shall
not involve restrictions on the number or nationality of factory ships or
land stations, nor allocate specific quotas to any factory or ship or land
station or to any group of factory ships or land stations; and (d) shall
take into consideration the interests of the consumers of whale
products and the whaling industry.
ICRW Schedule (Regulations)
http://www.iwcoffice.org/index.htm
• III. CAPTURE
– 6. The killing for commercial purposes of whales, except minke
whales using the cold grenade harpoon shall be forbidden from the
beginning of the 1980/81 pelagic and 1981 coastal seasons. The
killing for commercial purposes of minke whales using the cold
grenade harpoon shall be forbidden from the beginning of the
1982/83 pelagic and the 1983 coastal seasons.
• Note that aboriginal subsistence hunting of whales is still
allowed (subject to strict regulations) under this provision.
• Four states formally objected to the moratorium
– Japan, Norway, Peru, and Russia (Peru withdrew
objections)
– Moratorium was extended in 1990
ICRW Schedule (Regulations)
• Moratorium on commercial whaling in effect since 1986
– Moratorium was extended in 1990
– Aboriginal subsistence hunting of whales is still allowed
(subject to strict regulations) under this provision
• Primarily benefits the United States (Alaska) and Russia
– Japan hunts under a scientific permit issued by the IWC
– Norway hunts on the basis of its formal objection to the
moratorium
– Iceland hunted by dropping out of ICRW; has resumed
membership as an objector
– North Atlantic Marine Mammal Commission
• Conceived as an alternative to ICRW, but only four countries
involved
• Applies to pinnepeds as well as cetaceans
North Atlantic Marine Mammal
Commission
http://www.nammco.no/
• Organized somewhat like the IWC but
encompasses pinnepeds (seals and
walruses) as well as cetaceans
• Clearly designed to promote conservation
and sustainability, but also to allow use of
marine mammal species
Current Status of Whaling
• Japan hunts under a scientific permit issued by the IWC
– Annually, Japan kills about 400 minke whales in the Antarctic
and another 210 whales – 100 minke whales, 50 Bryde's
whales, 50 sei whales and 10 sperm whales – in the
northwestern Pacific.
• Norway hunts on the basis of its formal objection to the
moratorium
– 226 minke whales in 1993
– 753 minke whales in 2002
• Iceland
– An annual quota of 100 minke, 100 fin, and 50 sei whales
• Aboriginal Hunting
– Primarily Russia and Alaska (also Greenland)
– Makah have a quota of 4 gray whales
Questions and Discussion
• Consider that 7 species are listed as endangered under the ESA
– the right, bowhead, sei, blue, sperm, finback, humpback, and
gray (removed from list in all but one location)
• Why would Iceland want to come back into the IWC?
– Possibility of trade sanctions under Pelly Amendment and
Packwood Magnuson Amendment
Note that Iceland was readmitted with a reservation that allows
it to be treated as a formal objector
• What do you think of the common claims of Iceland and Japan
and others that they are engaged in scientific research that costs
much more than the value of the whale meat?
– Whale meat can command as much as $100/lb. In Japan
– What do you think about the DNA evidence that suggests that
some whale meat in Japan is from protected species?
Convention on International Trade in
Endangered Species (CITES)
•
http://www.cites.org/eng/disc/text.shtml
• Appendix I species
– Threatened with extinction – prohibits commercial international trade
except for scientific research
– Requires both an import and export permit
• Appendix II species
– Not necessarily threatened with extinction but may become so unless
trade is closely controlled.
– Requires only an export permit
– Certificate from State of introduction required for species from the sea
• Appendix III species
– included at the request of a Party that needs the cooperation of other
countries to prevent unsustainable or illegal exploitation
– Requires only an export permit
Case Study: The Makah Whale Hunt
• Is whaling still central to the Makah culture?
• Do the Makah need whales for subsistence?
• Can Makah claim historical practices when using a highpowered rifle?
• Should we allow hunt to go forward out of respect for the
Makah culture?
– Is it a culture we should honor?
• In July, 2004: 9th Circuit ruled against the Makah
Marine Mammal Protection Act (MMPA)
• First enacted in 1972, 16 U.S.C. 1361-1407
• Marine mammals
– Cetaceans (toothed and baleen whales)
– Pinnepeds “fin-footed”, refers to the marine mammals that
have front and hind flippers
• Seals, sea lions, and walruses
– Sirenians (manatees and dugongs)
– Polar bears
– Sea otters
• NOAA Fisheries responsible for cetaceans and pinnepeds
(other than walruses)
• Fish and Wildlife Service responsible for sirenians, polar
bears, and sea otters
MMPA
• Overall goal – optimal sustainable population (OSP)
– The number that will achieve the maximum productivity of the
population keeping in mind the carrying capacity of the habitat
– Not concerned with “yields” (as in fisheries) but with
populations
• The Moratorium
– The MMPA imposes a moratorium on taking marine mammals
in U.S. waters or by U.S. citizens on the high seas
• Takings
– To harass, hunt, capture, or kill or attempt such activities
against any marine mammal
– Compare the ESA: To harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture or collect or attempt any such activity
Protecting Marine Mammals and Fishing
• Exemptions from the moratorium
– 1981 incidental takings from fisheries that take a
“small number” of marine mammals with a negligible
impact
– 1988 amendments authorized a 5-year exemption for
non-tuna commercial fisheries
– 1994 amendments required “stock assessments” to
determine the “potential biological removal level” –
the level of removal that could be tolerated without
causing the stock to drop below the OSP
• Direct takes remain subject to the moratorium
Questions and Discussion
• 1. Is the moratorium consistent with the “best
technology” approach suggested in the
legislative history?
• 2. Note the issues with LFA sonar. If it
damages marine mammal hearing and disrupts
communication is it a “take”?
– Consider the 2003 court order
– Does it apply to the “war” on terror?
• 3. Commercial tour boat takes passengers to
feed (or swim with) dolphins. Is this a take?
Pinnepeds and Salmon
• As California sea lion and Pacific harbor seal populations
have recovered, conflicts with fisherman have been rising
– Pinnepeds eat a lot of fish
• MMPA allows the taking of “individually identifiable
pinnepeds which are having a significant impact on the
decline or recovery of salmonid fishing stocks.”
– 16 U.S.C. 1389(b)(1)
• Is this enough? Are seals and sea lions
scapegoats?
Dolphins and Tuna
• In the Eastern
tropical Pacific
Ocean (ETP),
dolphins swim above
yellowfin tuna
• 6 million dolphins
killed between 1959
and 1992 in purse
seine nets
Historical Look at Dolphin/Tuna Conflict
• MMPA goal of “zero mortality and serious injury rate” 16 U.S.C.
1371(a)(2)
– In 1981, “zero mortality” defined to mean “best available
technology”
• 1984 MMPA amendments impose trade restrictions against
countries that failed to adopt dolphin protection programs like U.S.
• General permits issued on a downward sliding scale
– Dolphin morality reduced to 15,305 by 1980 but by 1988 had
increased to 18,400
• Dolphin Protection Consumer Info Act of 1990
– “Dolphin safe” labeling standards
• Irrespective of the law, private companies refused to buy tuna that
was not dolphin safe
The Sanctions Problem
• U.S. forced to impose embargoes against
tuna harvesting nations
• GATT decides the trade embargo is unlawful
• IATCC and the La Jolla Agreement
– 1995 Declaration of Panama
– Required MMPA amendments as well as dolphin
safe amendments
The International Dolphin
Conservation Program Act
• Required the Secretary of Commerce to
conduct scientific research and make a
determination of whether the intentional
deployment on or encirclement of dolphins with
purse seine nets is having a "significant
adverse impact" on any depleted dolphin stock
in the eastern tropical Pacific Ocean (ETP)
• In 1999, report issued showing that purse
seine nets were not having a significant
adverse impact