Management of the Commons for Biodiversity: Lessons from the North Pacific

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Date
2003
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"The North Pacific has the worlds largest groundfish fisheries, valued at more than $1 billion annually. It also is home to the largest population of Steller sea lions (SSL), a species originating 3-4 million years ago and now endangered. The precipitous decline of the western stock of SSL in the 1970s-1990s coincided with the U.S. nationalization and exponential growth in the Gulf of Alaska (GOA) and Bering Sea/Aleutian Islands (BSAI) groundfish fishery. Believing that the fishery competed with the SSL for prey (groundfish), environmental organizations led by Greenpeace challenged the U.S. National Marine Fisheries Service (NMFS) in federal district court of Seattle; from filing of the suit, Greenpeace v. National Marine Fisheries Service, in April 1998 through March 2003, the court (and Judge Thomas S. Zilly) was the effective manager of the North Pacific commons. "The argument of the paper unfolds in four substantive parts. First, we analyze the competition of interests in the use, management, and preservation of the North Pacific commons, including the offshore and near-shore fisheries, environmental organizations, governments (federal, state, and local), and the scientific community. Second, based on the extensive court dockets in the quartet of decisions by Judge Zilly, we analyze the conflict of laws concerning management of species in the commons. We compare and contrast provisions of the National Environmental Policy Act, the Marine Mammal Protection Act, the Endangered Species Act, and the Magnuson-Stevens Act (as amended in 1996 by the Sustainable Fisheries Act). "Third, we focus on the regulatory environment in the North Pacific under American jurisdiction. We examine the structure of NMFS (now called NOAA-Fisheries) and its relationship to the North Pacific Fishery Management Council (the Council). Then, based on interviews with informants, we investigate the ways in which agency managers navigated among conflicting interests and authorities in authorizing fishery actions: establishment of Fishery Management Plans (FMPs), Acceptable Biological Catches (ABC) and Total Allowable Catches (TAC), and measures for the temporal and spatial dispersion of the fisheries. Also, we consider methods for the resolution of interest conflicts: biological assessments, biological opinions (to assess jeopardy to listed species and adverse modification of their critical habitat), and environmental impact statements. "Fourth, given the pressure on NOAA-Fisheries to conform to the mandates of both NEPA and ESA when the agency operated under court control, we investigate changes in the culture of the agency--its behavioral norms and operational codes. The question we ask is the source of changes: from the crisis itself, competition among affected interests, the product of new scientific information as well as the role of changes in personnel. We also ask whether the changes have facilitated 'better governance of natural resources.' "The Steller sea lion issue is the most controversial case in the management of the North Pacific commons, but just one in a series of national and global biodiversity conflicts. The fifth and final section of the paper distills the lessons that can be drawn from the North Pacific when interests and authorities conflict and agencies operate under conditions of uncertainty."
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IASC, fisheries, marine resources, litigation, NGOs, environmental law, biodiversity, environmental policy, conflict
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