1 1William S. Richardson School of Law, University of Hawaii. 2. M. Casey Jarman dedicates this article to the memory of Dr. James Jones, former director of the Mississippi-Alabama Sea Grant Consortium, who supported and encouraged her work for many years.
2 2University of Oregon Ocean and Coastal Law Center
1. This paper is the result of research sponsored in part by Oregon Sea Grant with funds from NOAA Office of Sea Grant, Department of Commerce, under NA Grant No. NA36RG0451 (Project R/PPA-38). The coauthors also gratefully acknowl- edge the research assistance of Andrea Coffman and the manuscript assistance of Nancy Farmer of the University of Oregon Ocean and Coastal Law Center. 3. See National Marine Fisheries Service, StrategicPlanfortheConservationandWiseUseofAmerica'sLivingMarineResources (Washington, D.C.: GPO, 1991); National Oceanic and Atmospheric Administration, 1995-2005StrategicPlan (Washington, D.C.: GPO, 1993).
4. Magnuson Fishery Conservation and Management Act, U.S.CodeAnnotated, vol. 16 (1985, Supp. 1993), Sec. 1801; Marine Mammal Protection Act, U.S.CodeAnnotated, vol. 16, Sec. 1361 (1985); Endangered Species Act, U.S.CodeAnnotated, vol. 16, Sec. 1531 (1985, Supp. 1993); Clean Water Act, U.S.CodeAnnotated, vol. 33, Sec. 1251 (1985); Clean Air Act, U.S.CodeAnnotated, vol. 42, Sec. 7401 (1985, Supp. 1993); Marine Protection, Research, and Sanctuaries Act of 1972, U.S.CodeAnnotated, vol. 33, Sec. 1401 (1985). 5. The tuna-dolphin conflict in the purse-seine tuna fishery of the eastern tropi- cal Pacific was raised in the hearings on the original MMPA, but detailed legislation to deal with the problem was not passed until the MMPA was amended in 1981. And Section 1543 of the ESA states that the more restrictive provisions of the MMPA take precedence over the ESA. 6. Susan D. Halsey and Robert B. Abel, eds., CoastalOceanSpaceUtilization (New York: Elsevier, 1990); Phyllis M. Grifman and James A. Fawcett, eds., InternationalPerspectivesonCoastalOceanSpaceUtilization (Los Angeles: Sea Grant Program, Univer- sity of Southern California, 1993). 7. Biliana Cicin-Sain, ed., OceanGovernance:ANewVision (Newark: University of Delaware, 1992). 8. It is somewhat ironic that all three acts formerly were handled by one House of Representatives subcommittee, which would seem to have increased the opportuni- ties for a more holistic congressional approach, but the MFCMA has now been as- signed to a separate fisheries subcommittee.
9. See Christopher M. Dewees and Edward Ueber, eds., EffectsofDifferentFisheryManagementSchemesonBycatch,JointCatch,andDiscards (La Jolla: Sea Grant College, University of California, 1990); Frowle, Fish.fortheFuture:ACitizen'sGuidetoFederal
FisheriesManagement (Center for Marine Conservation, 1992); National Marine Fisher- ies Service, OurLivingOceans:TheStatusofU.S.LivingMarineResources (Silver Spring, Maryland: National Marine Fisheries Service, 1992). 10.Take is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (EndangeredSpeciesAct [n. 4 above], Sec. 1532 ). 11. As the first comprehensive endangered-species legislation, the ESA had two objectives: to authorize the secretary of the interior to create programs that promote the propagation of native fish and wildlife threatened with extinction, and to expand administrative authority of the secretary over the National Wildlife Refuge System (Act of 20 December 1973, Public Law 93-205, U.S.CodeCongressionalandAdministra-tiveNews (1973): 2989, 2990). The act was expanded to authorize the development of a list of species threatened with worldwide extinction and to prohibit the importa- tion of such animals or of products made from the animals. This measure was de- signed to help ensure that the United States would not contribute to the degradation of other nations' wildlife (p. 2991). An exception to this restriction was created, allowing the importation of threatened animals for scientific, educational, zoological, or propagational purposes. It also amended existing legislation to assist the states in protecting domestically endangered species by making the sale or purchase of endangered species products unlawful throughout the United States. 12. For example, the threatened eastern North Pacific stock of the gray whale was delisted in December 1992. The NMFS determined that the gray whale population is "between 60 and 90 percent of its carrying capacity" and "is not currently in danger of extinction" (FederalRegister 56 : 29472). Most other listed species have not recovered sufficiently to be delisted. 13. Endangered Species Act (n. 4 above), Sec. 1536(a)(2). Exemptions from this requirement are available by following a complicated exemption process. See Sec. 1536(b)-(p).
14. Ibid., Sec. 1539. 15. A depleted stock has fallen below its determined optimum sustainable popu- lation or is listed as endangered or threatened under the ESA (Marine Mammal Protection Act (n. 4 above), Sec. 1362). 16. "The term 'optimum sustainable population' means, with respect to any pop- ulation stock, the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystems of which they form a constituent element" (ibid., Sec. 1362). 17. Migratory Bird Treaty Act, U.S.CodeAnnotated, vol. 16, Sec. 701 (1985).
18. Ibid., Sec. 703 (Supp. 1993). Other prohibited activities include hunting; offering for sale; selling; offering to barter; bartering; offering to purchase; purchas- ing; delivering for shipment; shipping; exporting; importing; causing to be shipped, exported, or imported; delivering for transportation; transporting or causing to be transported; carrying or causing to be carried; or receiving for shipment, transporta- tion, carriage, or export. 19. Most ESA incidental-take permits are issued by the Fish and Wildlife Service in the Department of the Interior. See CodeofFederalRegulations, vol. 50, Sec. 17.22 (1992). However, for those marine species over which the secretary of commerce has jurisdiction, NOAA assumes this authority (CodeofFederalRegulations, vol. 50, sec. 222.22). For a list of these species, see CodeofFederalRegulations, vol. 50, Sec. 222.23(a). 20. Endangered Species Act (n. 4 above), Sec. 1539(a)(2); CodeofFederalRegula-tions, vol. 50, Sec. 222.22(b)(5). 21. Endangered Species Act (n. 4 above), Sec. 1539(a)(2). 22. Ibid., Sec. 1539(d); CodeofFederalRegulations, vol. 50, Secs. 222.22(c)(2), 17.22. Section 17.22 applies to the Fish and Wildlife Service permits and contains an additional determination for which procedures to deal with unforeseen circumstances are provided. Special regulations apply to the incidental capture of threatened sea turtles. See CodeofFederalRegulations, vol. 50, Sec. 222.41, 222.72(e).
23. Endangered Species Act (n. 4 above), Sec. 1539(a); CodeofFederalRegulations, vol. 50, Sec. 222.22(d). 24. Marine Mammal Protection Act (n. 4 above), Sec. 1372(a)(5), formerly Sec. 102(a)(4), Public Law 92-522 (1972). 25. "At the current time, it appears to the Committee that the tuna fleet would be an appropriate recipient of general permits, under the authority of Section 103(i) of Title I, keyed not to specific numbers of porpoises which might be taken but to the techniques that should be used in fishing operations" (House Report No. 92-707, 92d Cong., 1st sess.). 26. Marine Mammal Protection Act (n. 4 above), Sec. 1371(a)(2), Sec. 101(a)(1) amended by Public Law 97-58, Sec. 2 (October 1981). 27. Marine Mammal Protection Act (n. 4 above), Sec. 1371(a)(2). For the yel- lowfin tuna purse-seine fishery, that goal would be met by using the "best marine mammal safety techniques and equipment that are economically and technologically practicable." " 28. Ibid., Sec. 1371(a)(4). The NMFS retained authority to suspend or withdraw such permission during the 5-year period after making a finding, following notice and comment, that the take is having a more than negligible impact or "the policies, purposes and goals of this Act would be better served through the application of this title without regard to this subsection" (Sec. 1371[a][B]).
29. These amendments and the legislative history reveal the growing political power of the commercial fishing industry. Although the House Report (No. 97-228) accompanying the 1981 amendment couches the 5-year waiver procedure for "small" takes in terms of enhancing marine mammal protection by increasing reports of takes, it also reflects the growing deference to commercial fishery interests: "[T]he same lengthy regulations requiring OSP determinations and permits which are applicable to the tuna industry also apply to activities involving small numbers of incidental takes. Only a fraction of non-tuna fishermen apply for a permit because of the cumbersome procedures required under the Act. The result has been a loss of data because most of these incidental takes go unreported. This symptom of "over management" has suggested the need for a two-tiered management scheme, distinguishing significant from insignificant takes" (p. 14). Nowhere in this report does Congress focus on the illegal behavior of those fishers who failed to at least attempt to apply for a permit. 30. Marine Mammal Protection Act (n. 4 above), Sec. 1383a (Supp. 1993). Subse- quently, Congress extended it to 1 May 1994. 31. Senate Report No. 100-592, 100th Cong., 2d sess.; Kokechik Fishermen'sAssoci-ationv.SecretaryofCommerce, 839 F. 2d 795 (D.C. Cir. 1988) (holding that the NMFS could not issue permit to take Dall's porpoise because of the possibility that northern fur seals would also be taken). 32. Accompanying the categories was to be a statement of the marine mammals and approximate numbers of persons/vessels in each fishery (Marine Mammal Protec- tion Act [n. 4 above], Sec. 1383a[b][A]).
33. Ibid., Sec. 1383a(g)(1).
34. National Marine Fisheries Service, ProposedRegimetoGovernInteractionsbe-tweenMarineMammalsandCommercialFishingOperations (Washington, D.C.: GPO, 1992); see FederalRegister 57 (1992): 59832. 35. National Marine Fisheries Service, ProposedRegirree (n. 34 above), p. 51. Inter- estingly, the NMFS interpretation of "zero mortality rate" contemplates human- induced mortality. "The ZMRG reflects the intent of Congress to allow the mortality or continued 'take' of marine mammals incidental to commercial fishing when such interactions were considered unavoidable and would not disadvantage the involved mammal stocks" (p. 51). 36. The NMFS clearly does not embrace this ideal: "The proposal is based on NMFS' belief that the removal of animals from most, but not all, marine mammal stocks may be authorized and is not inconsistent with the purposes of the MMPA" (ibid., p. 21). 37. Ibid., pp. 10-11. 38. Ibid., pp. vi, 10-11. PBRs would be based on available data and default values of growth rates when data are insufficient. Conservative estimates of population size are to be used-but they propose use of the best, not necessarily the lowest- available, estimate of minimum abundance for all stocks to avoid unnecessary restric- tions on economic activities, with adjustments made when a stock is suspected to be declining due to factors other than direct removals.
39. Ibid., p. 42. 40. Ibid., pp. 69-70. 41. Ibid., pp. 73-77. 42. Ibid., p. 78. 43. Ibid., pp. 56-67. 44. Marine Mammal Protection Act (n. 4 above), Sec. 1383a(l). 45. "By February 1, 1990, the Chairman of the Marine Mammal Commission is required to transmit to the Secretary and make available to the public recommended guidelines to govern the incidental taking of marine mammals by commercial fish-
ermen after October 1, 1993. Because the MMC is a scientific body, the Committee intends that these guidelines be scientific in nature; that is, they should not deal with the economics of fisheries or allocation of fishing privileges. Further, they must be based on sound principles of wildlife management and must only be issued after full consultation with all interested parties" (Senate Report No. 100-592 [n. 31 above]). As recognized by the NMFS report, though, the Marine Mammal Commission's guide- lines sanction "incidental taking of depleted species (when such taking would not prevent or cause a significant delay in the recovery of those stocks) and non-depleted species to (1) allow the ecologically sound utilization of other resources and (2) help obtain data required to manage marine mammals and marine ecosystems effectively" (National Marine Fisheries Service, ProposedRegime [n. 34 above], p. 9). 46. Marine Mammal Protection Act (n. 4 above), Sec. 1381a. "No later than February 1, 1991, the Secretary shall publish in the Federal Register for public com- ment a suggested regime that, if authorized by further action of the Congress, would govern the incidental taking of marine mammals by commercial fishermen.... In determining permissible levels of take, the Secretary should consider the economic and social, as well as the biological impacts, of the proposed regime" (Senate Report No. 100-592 [n. 31 above]). 47. National Marine Fisheries Service, ProposedRegime (n. 34 above), p. 54. 48. Ibid., pp. 54-56. 49. Ibid., p. 10. 50. Ibid., pp. 12-14, 18. 51. Members include the Alaska Groundfish Data Bank, Aleutians East Borough, American Factory Trawler Association, American High Seas Fisheries Association, American Seafood Harvesters Association, Animal Protection Institute, Arctic Alaska
Fisheries Corporation/Tyson Seafood Group, Association of Village Council Presi- dents, Bering Sea Fishermen's Association, Blue Water Fishermen's Association, Cali- fornia Abalone Association, California Gillnetters Association, California Urchin Divers Association, California Urchin Producers Association, Center for Marine Con- servation, Concerned Area M, Friends of the Sea Otter, Gulf of Alaska Coalition, Kodiak Island Borough, Maine Gillnetters Association, Maine Sardine Council, Na- tional Audubon Society, National Fisheries Institute, New England Fishery Manage- ment Council, Northwest Indian Fisheries Commission, Pacific Seafood Processors Association, Pacific States Marine Fisheries Commission, Peninsula Marketing Associa- tion, Point Judith Fisheries Cooperative Association, Sea Urchin Processors Associa- tion of California, Seafreeze Ltd., the Associated Fisheries of Maine, the Marine Mam- mal Center, the National Fishmeal and Oil Association, Trout Unlimited, and the World Wildlife Fund. 52. MMPA Negotiating Group, ProposalAddressingSectionsof theMarineMammalProtectionActNegotiationsRelevanttoCommercialFishingInteractions (Washington, D.C.), p. 3. 53. Ibid., pp. 7-10. 54. Ibid., p. 8.
55. Ibid., pp. 10-13. 56. Ibid., p. 6.
57. Ibid., pp. 5, 9, 13, 16-17. 58. See Louisianav.Verity, 853 F. 2d 322 (5th Cir. 1988). 59. 982 F. 2d 1342 (9th Cir. 1992).
60. See AmericansFactoryTrawlerAssociationv.Knauss, No. C92-870R (W.D. Wa. 24 July 1992); FederalRegister 58 (1993): 16369; CodeofFederalRegulations, vol. 50, Pt. 227. 61. See FederalRegister 58 (1993): 17181; CodeofFederalRegulations, vol. 50, Sec. 226.12. 62. See Oliver Houck, "The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce," ColoradoLawReview 64 (1993): 277. 63. See, e.g., PacificNorthwestGeneratingCooperativev.Brown, 1993 W.L. 122001 (D. Or.). 64. See UnitedStatesv.Glenn-ColusaIrrigationDistrict, 758 F. Supp. 1126 (1992) (irrigation pumping enjoined during migration of threatened salmon).
65. See FederalRegister 57 (1992): 57051; CodeofFederalRegulations, vol. 50, Sec. 226.12. 66. See FederalRegister 58 (1993): 12854; CodeofFederalRegulations, vol. 50, Pt.17.