Hayden, Anne

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Taking Stock: The Magnuson-Stevens Act Revisited:Implementation of the National Ocean Policy: Lessons from New England

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Roger Williams University Law ReviewVolume 17 | Issue 1 Article 5Winter 2012Taking Stock: The Magnuson-Stevens ActRevisited:Implementation of the National OceanPolicy: Lessons from New EnglandAnne HaydenFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Article is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger Williams UniversityLaw Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationHayden, Anne (2012) "Taking Stock: The Magnuson-Stevens Act Revisited:Implementation of the National Ocean Policy: Lessonsfrom New England," Roger Williams University Law Review: Vol. 17: Iss. 1, Article 5.Available at: http://docs.rwu.edu/rwu_LR/vol17/iss1/5Implementation of the National OceanPolicy:Lessons from New EnglandAnne Hayden*INTRODUCTIONIn 2010, President Barack Obama established, throughexecutive order, the nation's first national ocean policy. Theimplementation of the policy is intended to replace two hundredyears of ad hoc policy development with a comprehensiveapproach to ocean governance; one that will provide guidance forthe use, development, and protection of the US ExclusiveEconomic Zone (EEZ), coordinate the marine related efforts ofmyriad governmental agencies, and limit use conflicts among thegrowing demands for our ocean resources. To some degree,establishment of a national ocean policy represents a restatementof federal authority over the EEZ, first codified in the passage ofthe Fisheries Conservation and Management Act (FCMA) in 1976.As such, it risks reinforcing assumptions regarding the efficacy ofrationalized management that have hindered the conservationand restoration of fish stocks in the Northeast and that areunlikely to result in effective maritime multiple use management.* Consultant in natural resource management, research and policy. Ms.Hayden has extensive experience working with state and federal agenciesand nonprofit organizations on issues of resource use and conservation. Sheis a doctoral candidate in Interdisciplinary Studies at University of Maine, anAdjunct Lecturer in Environmental Studies at Bowdoin College, and acolumnist for National Fisherman magazine.7374 ROGER WILLIAMS UNIVERSITYLAW REVIEW [Vol. 17:73New England's fisheries crisis and recent ocean planninginitiatives provide insights regarding effective implementation ofthe National Ocean Policy.The twentieth century saw the rise of science as a way ofunderstanding the natural world and the development ofprofessional resource management as the most appropriatemechanism for both optimizing natural production for human useand resolving issues of over and misuse of natural resources. Theprevailing view was deterministic and assumed that the naturalworld operated as a steady state: science need only to understandthe mathematical relationships underlying natural processes inorder to manipulate such processes for the benefit of mankind.The concept of maximum sustainable yield, the basis for much ofour current fisheries management paradigm, sprang from thiswell.FEDERALIZATION OF FISHERIES MANAGEMENTImpetus for passage of the FCMA, passed in 1976, includedthe desire to capture the economic benefits of rich coastal shelffisheries for Americans rather than foreigners, the need to restorestocks depleted by foreign fishing fleets, an interest inincentivizing expansion of domestic fishing fleets, and the beliefthat recently developed principles of scientific management couldbe applied to maximize the benefits of fisheries. Absent fishingpressure from foreign fleets, stocks began to recover only to bedecimated in turn by the newly capitalized American fishing fleet.Attempts to address the failure of management to stabilizeharvests include several amendments to the FCMA, among themost significant of which were the Sustainable Fisheries Act of1996, in which the FCMA was renamed the Magnuson-StevensFisheries Conservation and Management Act (MSFCMA), and theMagnuson-Stevens Fisheries Conservation and ManagementReauthorization Act of 2006. Each sought to address theweaknesses of the Act by further privileging the role of science insetting management targets and by establishing legallyenforceable standards for preventing overharvesting and forrebuilding fish stocks.LESSONS LEARNEDSeveral developments in the decades since the rise toLESSONS FROM NEW ENGLANDprominence of federalized professional natural resourcemanagement now challenge the current management paradigmand suggest alternatives to the top down, data-driven approachcurrently embodied in the MSFCMA.First, research on the structure of groundfish stocks in NewEngland has revealed that previous assumptions about the well-mixed nature of such stocks are unfounded. Rather than beingpart of one large stock, as assumed during implementation of theFCMA, groundfish stocks in the Gulf of Maine are now known tobe comprised of a series of substocks.1  Broad-scale stockassessments and fishery management plans fail to recognize andtherefore to protect many of these substocks. Second, ecologistsnow view ecosystems as complex and dynamic rather than asfunctioning as a series of steady state equilibria. Interactionsacross temporal and spatial ecological scales introduceirresolvable uncertainty into ecosystem dynamics confounding theefforts to predict stock abundance that have been the foundationof professional resource management. While the concept ofmaximum sustainable yield (MSY) has been useful as a teachingtool, its limitations as a regulatory tool have been welldocumented.2 Questions regarding the utility of MSY as aregulatory tool were raised even as the FCMA was beingimplemented.3 Third, it is now accepted that humans are part ofthe ecosystem. The logistic, surplus production models that arethe basis of our current fisheries management paradigm definethe role of fishermen in terms of a simplistic fishing mortalityfactor. Fishing behavior is understood to be a complex function ofmany elements, including market prices, operating costs,availability of capital, opportunity costs, fishers' ecologicalknowledge, cultural practices, as well as the effect of regulationson all of the above. Not only are fishermen part of the ecosystembut fisheries managers, consumers, and competing marine users,including recreational fishermen, environmentalists,aquaculturists, and, more recently, energy interests, all play a role1. See Edward P. Ames, Atlantic Cod Stock Structure in the Gulf ofMaine, 29 FISHERIES 10, 16 (2004).2. See e.g., Carmel Finley, The Social Construction of Fishing, 1949, 14ECOLOGY & Soc'Y (2009).3. See P.A. Larkin, An Epitaph for the Concept of MaximumSustainable Yield, 106 TRANSACTIONS AM. FISHERIES Soc'Y 1, 4-5 (1977).20121 7576 ROGER WILLIAMS UNIVERSITYLAW REVIEW [Vol. 17:73in affecting the dynamics of marine ecosystems, directly orindirectly. Fourth, research regarding common property resourceshas shown that Garrett Hardin's assertion that only privatizationor government regulation can prevent tragedies of the commonsrepresents a false dichotomy.4 Studies have documented myriadexamples of cooperation among user groups to sustain the use ofcommon property resources: most limit access to the resource, apossibility not anticipated by Hardin.5 Finally, federal fisheriesmanagement has failed in New England to restore or protectmany fish stocks; as a result, thousands of fishermen have losttheir livelihoods and communities all along the New Englandcoast have shifted from economies based on diverse fisheries todependence on lobster fishing and tourism.While it is clear that overharvesting, well underway by thetime the FCMA was passed, caused the collapse of New England'sgroundfish stocks, it is less well understood that federal policiescontributed to the overharvesting that occurred after the FCMAwas implemented. Just as Hardin could not imagine thatindividual users could agree among themselves to limit resourceuse, current management paradigms assume that fishermen actonly as individuals pursuing their own self-interest. Focus onsingle species management and regulation undercuts theconservation incentive of small-scale diversified fisheries byreinforcing a shift to larger scale, "roving bandit" fisheries.6Management at the scale of the Gulf of Maine allowed open accesson substocks resulting in local extirpations and sharply reducingthe viability of the small boat fleet. Historical analysis revealsthat such substocks at one time collectively supported groundfishlandings in the Gulf of Maine an order of magnitude higher thannow occurs, all landed with sail powered vessels using hook andline technology.7  While some groundfish stocks in the Gulf ofMaine are showing signs of recovery, federal policies limit the4. See Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243,1247 (1968).5. See ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OFINSTITUTIONS FOR COLLECTIVE ACTION passim (1990).6. See James A. Wilson, Matching Social and Ecological Systems inComplex Ocean Fisheries, 11 ECOLOGY & Soc'Y (2006).7. See Ames, supra note 1, at 22; Karen E. Alexander et al., Gulf ofMaine Cod in 1861: Historical Analysis of Fishery Logbooks, with EcosystemImplications, 10 FISH & FISHERIES 428, 444 (2009).LESSONS FROM NEW ENGLANDlikelihood that stocks can be restored to historical levels.AN INTEGRATIVE APPROACH TO MANAGEMENTImplementation of the National Ocean Policy presents anopportunity to reframe our approach to management of federalwaters to reflect advances in our understanding of the interactionbetween resource users and marine ecosystems. An effectiveapproach reinvisions the interactions of humans and the marineenvironment as socio-ecological systems.8  Such an approachreplaces a vision of management as exogenous manipulation ofecosystem components with one that acknowledges the complexand multi-scalar interdependence of social and ecologicalprocesses.Prescriptive management is replaced by an iterative processof trial and error known as adaptive management: managementactions are implemented at a variety of scales (taking into accountcross-scale linkages), social and natural systems are monitored foreffects, and the results applied to the timely adjustment ofmanagement strategies. An adaptive approach allows formanagement to adjust not only to unanticipated changes withinthe system, but also to the effects of exogenous forces such asclimate change and market forces.Effective management must also reflect the social behaviorthat emerges as a result of user groups' interactions with marineecosystems. Co-management, in which government sharesauthority for oversight of resource management with resourceusers, has been shown to be effective in creating incentives foruser groups to share data, cooperate within the group to achieveconservation goals, and increase compliance with regional andfederal requirements. Matching the scale of co-management tothe scale of the resource and allowing users a role in decision-making regarding resource use ensures that users benefit fromtheir efforts to conserve, and increases incentives for meaningfulparticipation in management.From an integrated, socio-ecological perspective, naturalresource management is recognized as at least as much as aproblem of social organization as one of science. Management that8. NAVIGATING SOCIAL-ECOLOGICAL SYSTEMS: BUILDING RESILIENCE FORCOMPLEXITY AND CHANGE 3 (Fikret Berkes et al. eds., 2003).2012] 7778 ROGER WILLIAMS UNIVERSITYLAW REVIEW [Vol. 17:73is adaptive and collaborative builds on institutions, rules, andnorms, integrating user social structure into the managementprocess.9One of the most challenging aspects of establishing adaptiveco-management of natural resources is that it is not effectivelyimposed on a socio-ecological system but must be allowed toemerge from the interactions of user groups operating at the scaleof the ecosystem properties on which they depend.' 0  TheMSFCMA prescribed co-management of fisheries, establishingregional councils designed to provide industry input intoregulations. The council system has failed to protect stocksbecause the scale of management does not reflect the ecologicalscale of the stocks and because the council appointment processand operating rules are unrelated to the social organization ofNew England's fishing industry. (A recent effort to reformmanagement to reflect social organization among fishermen isdescribed below.) Co-management is not a panacea for effectivemanagement of common property resources;" however, it doesprovide opportunities for incentivizing conservation among usersthat would otherwise be lost.IMPLEMENTATION OF THE NATIONAL OCEAN POLICYPlans for implementation of the National Ocean Policy focuson coordination of government agencies, scientific research, andcoastal and marine spatial planning (CMSP) as the means forachieving effective, comprehensive, ecosystem-based oceanmanagement.12 For the purposes of CMSP, the nation's marinewaters are divided into nine regions, parallel to, but independentof, the jurisdictions of the MSFMCA's fishery managementcouncils (with the addition of a council representing the Great9. See Derek R. Armitage et al., Adaptive Co-Management for Social-Ecological Complexity, 7 FRONTIERS ECOLOGY & ENV'T 95, 100 (2009); TimothyR. McClanahan et al., Healing Small-Scale Fisheries by Facilitating ComplexSocio-Ecological Systems, 19 REV. FISH BIOLOGY & FISHERIEs 33, 42 (2009).10. Jack Ruitenbeek & Cynthia Cartier, The Invisible Wand: AdaptiveCo-Management as an Emergent Strategy in Complex Bio-economic Systems33 (Ctr. for Int'l Forestry Research, Occasional Paper No. 34, 2001).11. Elinor Ostrom, A Diagnostic Approach for Going Beyond Panaceas,104 PRoc. NAT'L ACAD. Scl. 15176, 15177 (2007).12. THE WHITE HOUSE COUNCIL ON ENVTL. QUALITY, FINALRECOMMENDATIONS OF THE INTERAGENCY OCEAN POLICY TASKFORCE 28 (2010).LESSONS FROM NEW ENGLANDLakes). The goal of the National Ocean Policy is to coordinate theocean-related actions of a wide range of government agencies;however, as planned, implementation of the policy is silent on howregional ocean planning will engage with previously establishedfisheries management and offshore energy licensing programs.Proposals to implement CMSP in New England describe ascience-driven effort that includes public participation andoutreach to user groups.13 As envisioned, CMSP treats users asoutside the decision-making process, privileges science over users'ecological knowledge, and establishes large regions as theappropriate scale for management. These constraints are likely tolimit meaningful participation by users in the planning processand hinder emergence of adaptive co-management.Three initiatives in New England illustrate opportunities forincorporating principles of adaptive co-management into federalocean planning. The Commonwealth of Massachusetts hasdeveloped an ocean management plan for state waters. Designedto reduce use conflicts and inform review of projects requiringstate and federal permits, the plan is the first comprehensiveeffort in the nation to manage state waters. Federal agencies,such as the United States Geological Survey, participated inmapping resources of state interest for incorporation in the plan.The State of Rhode Island recently adopted a management planfor adjacent offshore waters. Driven by proposals for developmentof wind power, the plan represents Rhode Island's interests in,and knowledge of, waters off its coast. The plan is the first tohave been recognized by the National Oceanic and AtmosphericAdministration. Adoption of catch shares as a fisheriesmanagement tool in New England illustrates effective stakeholderparticipation at an even finer scale. The New England FisheryManagement Council recently adopted an amendment to thegroundfish management plan that allows for self-organization offishermen into groups for the purpose of jointly managing fishingactivities. The process, which allocates a percentage of the totalallowable catch to each group, provides fishermen with theincentive to target high value fish, avoid by-catch and reduce13. NORTHEAST REGIONAL OCEAN COUNCIL, ADvANCING COASTAL ANDMARINE SPATIAL PLANNING IN THE NORTHEAST: NORTHEAST REGIONAL OCEANCOUNCIL (NROC) PROPOSAL To NOAA (December 10, 2010).2012] 7980 ROGER WILLIAMS UNIVERSITYLAWREVIEW [Vol. 17:73habitat impacts. The amendment was approved by the NationalMarine Fisheries Service. The role of the federal government ineach of these three initiatives is a model for incorporation of finerscale, stakeholder driven input into a broad scale, federalplanning effort.CONCLUSIONFederal rationalization of American fisheries offers severallessons that should be heeded in implementation of the NationalOcean Policy. With its focus on nine regional ocean councils andCMSP, implementation appears poised to replicate the samebroad-scale, data driven approach that underlies the MSFCMA.As proposed, the National Ocean Policy does not precludeincorporation of mechanisms that would allow for development ofadaptive co-management, including opportunities for identifyingresources at a variety of ecological scales and allowing for theemergence of scale-related institutions that share authority andresponsibility for management among federal, regional and localscales of governance. However, implementation will need to bemodified in order to capture the potential benefits of adaptive co-management. To the extent that implementation builds on out-dated assumptions regarding the primacy of science, professionalmanagement, and federalization of oversight, it is likely to limitthe productivity of, and the collective benefits to be derived from,our nation's coastal and marine resources.

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Taking Stock: The Magnuson-Stevens Act Revisited:Implementation of the National Ocean Policy: Lessons from New England

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