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.html

• 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 Boundarieshttp://geography.about.com/library/misc/uceez.htm

Note that a nautical mile = 1 minute of latitude or approximately 1.15 milesB = 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 equitably16 U.S.C. 1853(a).

National FMP Approval Standards1. 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

• Note that Councils are required to –– provide both qualitative and quantitative information about

affected communities– Analyze history, extent, and type of participation within a

fishery – Assess the positive and negative social and economic

impacts of alternative management measures• 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

Red Snapper Fishery• Red snapper are “reef fish”

• Gulf Council found that red snapper were –– Slightly overfished in 1984 and “significantly overfished”

in 1988

• Target spawning potential ratio is 20%– Spawning potential of an un-fished area is 100%– The ratio expresses the potential for the fished population

to the un-fished

• Recent evidence suggests some improvement in recruitment and biomass of red snapper

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/intro?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 Commissionhttp://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 AmendmentNote 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 high-powered 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