Living Marine Resources Management: A Proposal for Integration of United States Management Regimes

By Christie, Donna R. | Environmental Law, Winter 2004 | Go to article overview

Living Marine Resources Management: A Proposal for Integration of United States Management Regimes


Christie, Donna R., Environmental Law


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. …

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