Ocean & Coastal Law Outline

A. JDX and Boundaries (Baseline- low tide line) a. 7 zones of maritime JDX

i. Internal/Inland Waters 1. Waters laying inland of coast

a. Ex. Rivers flow into sea, bays, ports, and tidal waters along open coast above any stage of the tide, above mean low-water

2. Only zones over which coastal state has COMPLETE controla. Foreign vessels may not enter inland waters w/coastal state’s permission and

pursuant to its conditions of admission3. Domestic laws may apply differently in inland than adjacent territorial seas, so impt to

distinguish boundaries4. The seaward limit of IW is baseline for determining the outer limits of the offshore

maritime zones5. Bays

a. IF:i. Indentation should be ‘landlocked’ by the mainland, not by adjacent

islandsii. Area of indentation must at min be that of a semicircle whose diameter is

the mouth of the bayiii. If bay’s mouth is 24 mi in length (or less) mouth is limit of inland waters

1. If > 24 mi, then 24 mi line constructed w/in bay to enclose max possible water area and that line is the limit of inland waters.

6. Rivers a. Ends at the mouth

7. Ports/Harbours a. Determined by function (instead of geo)b. Not included are roadsteads (load and off load w/o piers)

8. Low-Water Tidal Datum a. Includes the narrow band of open sea which covers the beach at any stage of the

tide above mean low-water

ii. Territorial Sea 1. 12 miles from the base line2. zones of complete sovereignty, EXCEPT:3. right of innocent passage

a. does not include certain operationsb. over-flight of air craft included

4. Narrow belt of ocean immediately seaward of the coast5. A3 of convention – every state has the right to establish that breadth of its territorial sea

up to a limit NOT exceeding 12 nautical miles, measured from its baselines. 6. State JDX almost as comprehensive as that over internal waters

a. Differences:i. Innocent passage - Internationally recognized right of vessels to transit a

foreign state’s territorial seaii. State will not exercise criminal JDX over activities occurring on vessel

in innocent passage UNLESS those activities affect the coastal state. b. Outside of these exceptions, coastal state may extend its reach of domestic

legislation to the limits of TS and enforce provisions of that leg against own citizens and foreigners.

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iii. Contiguous Zone 1. 24 miles from the baseline2. allows countries to go 24 mi to exert laws regarding fiscal, customs, imkigration,

and sanitary regs.3. A33 (1) – in a zone contiguous to its territorial sea…the coastal State may exercise the

control to ‘prevent and punish violations of its customs, fiscal, immigration, or sanitary laws and regulations w/in its TS.

4. Boundaries:a. Seward limit of the TS (max of 12 na mi from coast) and a line up to 24 miles

from the coast5. Difference btw TS and CZ JDX:

a. TS is subject to sovereignty of the upland stateb. CZ coastal states JDX is limited to specifically identified exceptions to the

international community’s primary interestsi. FV don’t have to asset/carefully meet definitions of innocent passage

ii. And F aircraft are not prohibited from overflying CZ w/o permission of coastal state

iv. EEZ- Exclusive Economic Zone (creation of 1982 convention)1. 200 miles from baseline2. coastal state has unlimited authority over uses of the zone

a. sov rights for purposes of exploring and exploiting, conserving and managing natural resources (A 56)

b. ALSO has JDX w/ regard to artificial islands, marine scientific research and protection of the marine environment (A60).

3. This also burdens state:a. EEZ imposes obligations on state to manage and conserve resources

i. Must ensure the proper cons/manag of resource not endangered by over exploitation

ii. Must allow foreign vessels in (subject to regs) if not taking all of the catch.

1. *provides that foreign interests may harvest resources not fully utilized by coastal state.

4. Magnuson-Stevens act focuses on protection/management of commercial species in the EEZ.

5. flags of conveyance – are a problem

v. Continental Shelf 1. Extends at min to 200, and max 250 nau mi from coast2. Rights of Coastal State:

a. Coastal nations have exclusive right to exploit and explore natural resourcesi. BUT no other state may explore for or exploit NR of CS w/out state’s

consent3. Rights of Internationals:

a. Right to navigate waters and airspace above CZb. Right of ALL states to lay submarine pipelines and cables on CZ of another state

4. Natural resources: 1) non-living resources, 2) living resources that are sedentary5. No limit on extraction of resources in CS- un like EEZ

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6. * in 1953 CG granted coastal states (CS) exclusive JDX to develop sea bed resources for specific distances off their shore, and set up comprehensive scheme for fed development of resources seaward of the state grants, to the edge of the CZ.

vi. High Seas 1. A (86) – all parts of the sea that are not included in the EEZ in the territorial sea or the

internal waters of state or archipelagic waters of an archipelagic state, are high seasa. Waters seaward of the zones of state JDX (above) are open to use by all nations

2. Rights (for all):a. Navigation, over flight, laying submarine cables, pipelines, constructing artificial

islands and installations, fishing, and scientific research3. BUT, Still subject to JDX

a. Every state can control its own nationals/flag vesselsi. Ex. Any one who is under US JDX

1. Can not ‘take’ ESA species on high seas (ESA)2. Can not take any marine mammal on high seas (MMPA)

4. Rule of Hot pursuit5. Duty to not overfish and to preserve marine mammals6. Can seize pirate ships- piracy is any illegal act or detention7. Freedom to lay cables- but once you get to CS must get country’s permission8. Tragedy of commons

vii. The ‘Area’1. Sea bed beyond limits of national JDX2. Convention recognizes the area and its resources as “Common Heritage of

Mankind”(A136)3. These resources may be developed under supervision of International Sea-bed authority

(as provided by convention). b. Issues:

i. Overlapping Marine Boundaries1. Convention pushes for agreement2. Absent agreement, cant unilaterally extend JDX past mid-way line, unless variance

needed (ie because of historic title/other special circumstances).

ii. State Boundaries1. Various US states may have CONCURRENT JDX w/in maritime zones2. Inland waters

a. Entirely w/in boundaries of the statesb. State law applies UNLESS preempted by federal lawc. States also play major part in implementing and enforcing some fed legislation in

their inland waters. i. Ex. CWA – authority for implementing its programs can be delegated to

the statesd. ALSO Inland waters include

i. Not just coastline watersii. But boundary lakes and rivers (lie w/in both state and national

boundaries, subject to state and fed JDX).3. Extending Beyond the Shore

a. Most cases- by state constitution or statute- described as extending 3 mi from coast(limit of territorial sea from 1793 to 1998, when 12mi)

i. Terr moved to 12mi, but state boundaries stayed sameb. States are SOV w/in this maritime belt

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i. May apply state law just as if on land1. Ex. Regulate fisheries on off-shore waters2. And implement fed leg like CWA

c. 2 boundaries?i. Seward boundary

ii. Lateral boundary (w/ neighboring state, to divide their maritime JDX)1. Usually by agreement, some by suit

a. Learning point from suit:i. International law can be useful in resolving

domestic disputesii. Absent agreement, equity is goal

iii. All things being equal, an equidistant boundary is equity

iv. But special circumstances will justify deviations fro the equidistance line.

iii. Unresolved Issues for JDX Within:1. Territorial Sea –

a. Went from 3 mi to 12 mi in some statutesi. Regan did it in 1988 under Pres auth over international affair

ii. But did not extend it domestically (waiting for CG)b. CG since extends a few of fed statutes which govern offshore activities

i. Problems:1. Be careful when dealing with any fed claim of maritime JDX to

ascertain if reach of statue has been extended to include modern 12 mi territorial sea

2. List of unextended statues should be reviewed to determine whether it is n US best interest to claim internationally recognized max of coastal state JDX

2. Continental Shelf- a. 2 question on extend of fed JDX over OCS (submerged lands seaward of States’

Submerged Lands Act grant)i. What is the extent of Corps’ authority to prevent obstructions to

navigation by artificial islands and fixed structures on OCS?1. Traditionally – federal and international law gave coastal sov

that authority2. OCSLA amended – describes Corps’ authority as only extending

to “installations…which ay be erected thereon for the purpose of exploring for, developing, or producing resources there from.

3. [first circuit] Although this change seems to limit Corps’ traditional authority, First Circuit found that was NOT CG intent (ambiguous):

a. Conference Report (reading adopted by CT):i. “all artificial islands and fixed structures on the

OCS-whether or not they are erected for the purposes of exploring for, developing, removing, and transporting resources therefrom, ARE subject to Corps authority.

4. Why still open

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a. Statue may be plain on its face (limiting Corps JDX to installation used I national development, exploration, production).

ii. What is the authority of the Corps to grant interests in federal property on the OCS?

1. COA- though CORPS can stop construction on OCS, does not mean it can ALONE authorize such construction

a. S.CT does not easily recognize auth in executive branch to surrender federal property w/out clear congressional delegation

i. CG is the custodian of federal lands2. Corps relied on OCSLA as giving it authority to approve, but

that statute specifically provides means for acquiring interests in OCS and that is GRANTS to be made by DOI not CORPS

3. (w/in that)a. Regs on permit issuance from Corps require the

applicant to affirm he has or will acquire the necessary property interest to occupy the land involved

i. But in the case, he had not, nor would be able to acquire that interest

ii. BCS no authority existed for fed gvt to convey an interest for such purpose

4. Partially resolved w/ Energy Policy Act of 2005a. Amended OCSLA, CG expressly granted secretary of

interior the auth to convey interests in federal lands on the OCS for alternative energy purposes

b. BUT – other uses [large-scale aquaculture, floating casinos, ect] do NOT have express source of authorization, may raise same issues presented by data power case

iii. Corps auth to lay cable in OCS also raises unresolved issues:1. International law long history (150 yrs first cable)2. Corps issue permit for laying cables on CS3. 1982 UN convention on Law of sea – continues recogn

international right to lay cables on CS and w/in EEZ of OTHER sovereigns

4. Regan/Clinton est EEZ – specifically recognized the continuing international right to lay and repair submarine cables in these zones

5. ISSUE 1 - Unclear where Corps finds statutory auth for its assertion of JDX

a. 404 CWA, 10 RHA – but these limit Corps JDX to navigable waters of US (3 mi from coast)

b. OCSLA 1333 (e) – but (see above) Q remain regarding that sections use to regulate nonextractive structures on CS.

i. First Cir (data tower case) relied on fact that the data tower was an “artificial island” and leg

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history indicated CG intent to retain auth over such structures

ii. BUT cables are not such structures (clearly distinguished in international law)

iii. & international law recognizes costal state authority over cable installation ONLY as necessary to protect exploration/exploitation of natural resources from its shelf

iv. NO indication Corps limits its asserted control over subsea cables to protection of those interests.

c. Public Trust Doctrine/ Public Accessi. Triad of rights protected under this doctrine

1. Fishing/ commerce/navigation

ii. Beaches/Tide Lands Issues1. Terms:

a. Accretion = gradual moving of landb. Avulsion = taking away, sudden change in shoreline (hurricane)c. Erosion = takes away, graduald. Reliction = water shifting (sea level rise ex at global scale)

2. Beach Access (theories)a. Public prescriptive easement (notorious, adverse)b. Implied dedicationc. Customary accessd. Zoning/regulatione. Legislation (beaches are public as matter of leg- public access granted under OR

law)iii. Mathew v. Mayhead

1. Adds swimming and recreation (Avon case), bathing, right to anchor, right to hunt, AND use of dry sand to rest AND right to access (public access doctrine).

a. Avon – established principle that if you have municipal beach or publically owned beach, you have dry sand area, the public has right to access.

2. Takeaway – right that you cant access is a meaningless righta. Also, public rights to enjoy privileges of bathing, swimming, shore activities

must be respectedb. Dicta- when use of dry sand is essential for enjoyment of oceans, this use is

subject to accommodation by the public. Idea that if all Oceanside land was private there would be no access to beaches. So idea of public trust would be a nullity.

i. Public interest is satisfies if you have reasonable access to sea3. Facts:

a. Public wanted access to dry sands, had access to tidal land (wet sand below high water mark).

d. Case Law on Boundariesi. Shively v. Bowlby (S.Ct in 1894)

1. Facts: man claimed not only of the land above high-water mark, but also of adjacent tide lands and a portion of the bed of the Columbia river.

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2. Issue: Shively v. Bowlby, 152 U.S. 1 (1894) (whether Oregon or a pre-statehood grantee from the United States of riparian lands near mouth of Columbia River owned soil below high-water mark).

3. Holding: a. *State owns below high tide, and wharf age right appurtenant to itb. person can own above high tide (dry land). [equal footing doctrine – state owns

i. P8- CG does actually have some power to grant land below high-water mark for navigable waters when necessary to perform international obligations, for improvements, for commerce, or other public purposes.

ii. Equal Footing Doctrine – when new states admitted to union they were admitted on an ‘equal footing’ with other states, and this also acquired sovereign interests in their waters.

1. the original States had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils beneath navigable water passes to a new State upon admission.

iii. Lands under tide waters are incapable of cultiation or improvement in manner of lands above high waters. They are great benefit to public for matters of commerce. Title and control of them are vested in sov for benefit of all people

1. Land above mean high tide will be dry land2. Everything below that land will be public3. Different states do it differently (some mean high tide, some low

high tide)4. DO have right to build docks, wharves (w/restrictions)- right to

peer out (promotes commerce and trade)a. Riparian – fesh waterb. Littoral – salt water

5. Right of navigation in servitude – trumps all other private rights, CANT build your pier in such a way that you block other user’s rights.

4. What is navigable?a. If affected by tide, NW, all tidal waters connected to the sea. b. Don’t have to connect to sea as long as you have geo, bio, chemical qualities that

make tidal waters unique. ii. California ex rel State Lands Com’n v. U.S . (1982)

1. California filed suit to quiet title to oceanfront land. 2. The Supreme Court held that the United States, not California, has title to oceanfront

land created through accretion, resulting from construction of jetty, to land owned by United States on coast of California.

a. Fed law – accretion belongs to upland ownerb. This accretion disputes to be resolved by federal law

i. Congress addressed the issue of accretions to federal land in the Submerged Lands Act, which vested title in the States to the lands underlying the territorial sea and confirmed the title of the States to the tidelands up to the line of mean high tide, but which in § 5 withheld from the grant to the States all "accretions" to coastal lands acquired or reserved by the United States. In light of this latter provision, borrowing for federal-law purposes a state rule that would divest federal ownership is foreclosed. Moreover, this is not a case in which federal common law

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must be created, since it has long been settled under federal law that the right to future accretions is an inherent and essential attribute of the littoral or riparian owner

ii. In light of provision of Submerged Lands Act vesting title in states to land underlying territorial sea and confirming title of states to tidelands up to line of mean high tide but withholding from grant to states all accretions to coastal lands acquired or reserved by states, borrowing for federal purposes a state rule that would divest federal ownership is foreclosed.

3. Boundaries:a. US title to accretion &b. Only land underneath inland waters is included in initial grant to states under

equal-footing doctrine, and hence, California could not properly claim that title to oceanfront land created through accretion was vested in state by that doctrine and confirmed by the Submerged Lands Act.

i. & Equal-footing doctrine does not vest title in state to all lands that ever were tidelands.

c. Section 2(a)(3) of the Submerged Lands Act, defining "lands beneath navigable waters" that fall within the Act's general grant to the States as including all "made" lands that formerly were lands beneath navigable water, does not apply to the gradual process by which sand accumulated along the shore, although caused by a jetty. To the extent that accretions are to be considered "made" land, they would fall within the reservation by the United States in the Act of "all lands filled in, built up, or otherwise reclaimed by the United States for its own use." In any event, § 5(a) of the Act expressly withholds from the grant to the States all "accretions" to lands reserved by the United States.

(2) Submerged Lands Act (1953)a. Establish state title to submerged lands and resourcesb. Decree limit of state ocean boundaries

i. Set at 3 na mi for original coastal states, but recognized auth of subsequently admitted states to extend boundaries (ex. TX, PR, FL – historic claims).

c. Reserve federal rights w/in and beyond state territorial limits

(3) Coastal Zone Management Act (CZMA)a. Established framework for managing development and resource use in coastal areas w/ a national vision

but state-led implementationi. Enacted “to preserve, protect, develop, and where possible to restore or enhance, the resources

of the Nation’s coastal zone for this and succeeding generations.”1. Voluntary but all states have joined but IL- all have been approved

a. If didn’t, fed would not apply (unlike CWA ect)2. Recog land use planning/management regulated traditionally run by state

a. Created the NERRS (National Estuarine Research Reserve System)i. Provide natural field labs for research

b. Implemented by:i. State-level coastal programs (CMP)

c. Managed by:i. NOAA (National Oceanic and Atmospheric Admin.) in Dep’t of Commerce

ii. Gives incentives for state’s to better manage their coastal zonesd. Amended in 1990 –

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i. Creating CZ Enhancement Grant Program (encourage states to improve protection in one of 8 areas)

1. Coastal wetland protection2. Man of high hazard areas3. Public access4. Control of marine debris5. Studying cumulative and secondary impacts of coastal development6. Special area management planning7. Ocean resources planning8. Siting of coastal energy and government facilities

ii. & Coastal Nonpoint Pollution Control Program1. new req for state costal programs to protect coastal water from shoreline land uses

e. To receive federal approval a state must: i. determine boundaries of their “coastal zone”

ii. establish and define appropriate uses in the coastal zone (of land and water)1. inventorying areas of particular concern and defining beach

iii. form state coastal zone commission and write proposal stating authority to regulate1. = must ID means and legal authorities by which state can carry out the program and the

organizational structure to implement the program, either through existing legislation that provides auth to create coastal program or new legislation to provide planning and coordination frameworks for coastal zone management

iv. program must incl. a planning process for energy facilities which “provides for adequate consideration of the national interest”

v. Sec. of Commerce, through NOAA, must determine if program complies w/ policies of CZMA- must recertify program every few years

f. CZMA defines the Coastal Zone: i. generally defined to incl. territorial sea and adjacent shorelands

ii. adjacent shorelands can be extended inland “only to extent necessary to control activities that have a direct and significant impact on the coastal waters.”

iii. states given great discretion b/c boundaries of each state differ greatlyiv. If fed. govt. owns land in coastal zone, it is exempted from state control but may be required to

comply w/ state CZMP.

1. The term Coastal Zone means: a. Coastal waters (including land therein and under) b. AND adjacent shorelands (including lands therein and under)

i. That are strongly influences by each other AND in proximity to the shore lines of the several states

c. AND includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches

2. The Coastal Zone extends a. Seward to outer limit of state title and ownership under Submerged Lands Act

i. Generally 3 na mi offshoreb. Inland from the shorelines ONLY to the extent necessary to control shore lands,

i. The uses of which have a direct and significant impact on the coastal waters, and to control those geographical areas which are likely to be vulnerable to sea level rise

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3. Excluded from the Coastal Zone are a. Lands the use of which is by law subject solely to the discretion of or is held in

trust by the fed gvt, its officers/agentsi. Stat may still have some reg JDX over these via the consistency

provisions of CZMA (see below)

g. JDX in the Coastal Zonei. NOAA administers (w/ DOI, EPA, Corps), Fed GVT funds

ii. NOS (National Ocean Service) implements national coastal zone management program, advances partnerships, provides science/info relevant to coastal management.

1. OCRM (w/in NOS) – the Office of Coastal Resource Management- develops guidance to approve and update state coastal management programs. Also oversees and negotiates financial agreements with states, evaluates performance, develops national coast policy, ect.

iii. State is like landowner (some limits regarding fed auth)1. Generally hold title to submerged lands w/in 3 mi of coast

a. Or 9 mi for TX, Fl, PR2. But CG maintains power (under CC) to regulate state submerged lands in some

circumstancesa. i.e. uses can be controlled by state and federal law

3. CT – CZMA does not automatically preempt all state regulation of activities on fed landa. & held state auth to review fed action under CZMA consistency provisions is

intended to ‘reach at least some activities conducted in those federal enclaves excluded from def of coastal zone’.

h. State Role in CZMAi. Implement CZM through individual state coastal management programs (CMP)

1. must be included as essential parts of each program:a. E protectionb. Access to natural and cultural resourcesc. And economic development

ii. Some adopt Ecosystem-based management (but not required)1. Seeks to prevent pollution rather than merely treat dischargers

iii. Approval of CMP1. API v. Knecht (9th Cir)– CMP does not have to amount to a zoning plan or be a predictive

device for private users to rely on (ie doesn’t require states to have inflexible zoning map)

a. Instead – program must create a framework w/in which the state can make rational decisions balancing competing interests and offer guidance for users

i. Once states have complied w/ procedural req’mnts of CZMA, they are given maximum flexibility.

ii. States have total veto authority for any oil and gas devel. off their coast.iv. Three Types of CMP sanctioned by CZMA

1. States may establish criteria and standard for local implementation2. Implement direct planning and regulation at state level3. OR review local project proposals on an individual basis

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i. CONSISTENCYi. Once approved, state can make federal/non-federal activities be consistent w/ mgmt. plan- this

is the heart of the CZMA.ii. Most common occurrences deal w/ oil and gas- Four stages of Oil and Gas Exploration

1. Five Year Plan - Dept. of Interior informs public that there is a plan to lease offshore land2. Lease Phase - companies can bid, purchase lease, and engage in preliminary investigation3. Exploration phase -

a. environmental process w/ impact statementb. purchaser explores to see what oil and gas exists

4. Commercial Production: set up infrastructure and begin productioniii. Sec. of Interior v. California- said only stages 3 and 4 require consistency review

1. This was overturned by the 1990 Amendment to the CZMA- now every stage requires consistency.

iv. 1990 Amendment to CZMA1. Removed the words “directly affects” and now only has to affect any land or water or

natural resource of coastal zone2. Federal actions w/ reasonably foreseeable effects on land or water use or natural

resource must be consistent to maximum extent practical w/ enforceable policies of the state.

3. Effects Test: Includes both “direct” effects and “indirect” effectsv. Federal Actions Include

1. Federal activity (actions taken by fed. govt. on their behalf)2. Federal permits and licenses (non-federal applicant seeking permit)

a. Ex.: permits under EPA or Corps of Engineers3. Federal funding of projects

vi. Consistency Approval Process1. Fed. agency or indiv. applicant must determine if activity will affect state’s coastal zone

a. Use Effects Testb. Coastal uses that may be affected

i. tourismii. commercial fishing

iii. navigationiv. general marine environment

2. If there is effect, they will have to propose a statement to the state that activity is consistent with state’s CZMP

3. The state then has option of agreeing to it or objecting to it4. If state objects to federal agency:

a. Federal agency can bypass the state and show why it is consistent and continue w/ project

5. If it is an individual and state objects:a. Individual must propose statement showing why consistent

i. State must respond w/in 6 mos. or it is considered approvedii. If state objects, the indiv. can appeal to Sec. of Commerce

6. Secretary of Commerce has two options for overriding state objectiona. Can override if he finds action consistent w/ state’s CZMP and overall goals of

CZMAi. If it furthers goals of CZMA in a signif. manner

ii. National interests outweigh adverse effects of the activity

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iii. There is no reason. alternativeb. Can override if activity is in the interest of national security

i. Burden is on applicant to prove thisii. Oil cos. will always say project is in interest of national security

7. If Secretary overrides, state can appeal from Admin. Agency to federal court8. Remember, federal agency cannot issue permit over state objection unless Sec. overrides

vii. Interstate Consistency1. Unclear whether state’s have authority to review one another’s activity2. The focus is on the effects- if effects are in your coastal zone then you can review activity

(4) Magnuson-Steven Fisheries Conservation and Management Act (MSA)a. Became MSA through amendmentsb. What it did:

i. Declared 200 mi exclusive US fishing zone1. Comprised of 3 mi of state waters and 197 mi of federal waters

a. Gave domestic authority to what was customary rule of international law (EEZ) and applied it to fish

b. Act required foreign fisherman to obtain consent from US if attempting to fish in 200 mi zone of US waters

ii. Dual Goal: to regulate fisheries in a manner that will ‘prevent overfishing and ensure optimum yield’

c. Who is responsible:i. SOI is responsible for regulating fisheries via NMFS (agency w/in NOAA). NMFS works with 8

regional counsel to develop fishery management plans. 1. Councils – comprised mainly of members of fishing industry, scientists, and state fishery

officials. Nominated by stat governors and approved by secretary of commerce. a. Presents issue of national interests versus regional interests (NMFS having

difficulty asserting national interests over regional)

d. Fishery Management Plans (FMP)i. MSA charges councils (8) with preparing FMP for fish stocks in their JDX

ii. Must contain (in 16 USC 1853):1. ‘conservation and management measures which are necessary and appropriate for the

conservation and management of the fishery, to prevent overfishing and rebuilt overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.”

2. ID the status of fish stocks and target fish rates3. Describe essential habitat of the stock4. ID measures to prevent/end overfishing and re-build the fishery5. Fishery impact statement which determines impact on fishing communities and

participantsiii. Once FMP developed, must be submitted to SOC for approval, and comply with 10 NATIONAL

STANDARDS listed in section 301 (a) [16 USC 1851]. These standards are guidance (don’t have force of law). Among the most important national standards are:

1. (1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. 16 U.S.C. § 1851(a)(1).

a. Prevent Overfishingb. Achieve Optimum Yield

i. In theory, should be the same as, or less than MSY

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Goal: in the end fisheries end up being about max sustainable yield (MSY) as reduced by any relevant economic, social, or ecological factor.

2. (2) Conservation and management measures shall be based upon the best scientific information available.” 16 U.S.C. § 1851(a)(2).

3. *(9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. 16 U.S.C. § 1851(a)(9)

a. FMP requires councils to min bycatch but, to the extent practicable. Est a standardized reporting methodology (SMRA) to assess the amount and type of bycatch occurring in the fishery, and include conservation and mgmt. measures that, to extent practicable and in following order:

i. Minimizeii. Minimize mortality

4. [essential fish habitat]a. essential fish habitat: waters, substrate necess to fish for spawning, breeding,

feeding, or growth to maturity. b. This has the potential to be very broad. Required to describe and identify

essential fish habitat for fishery.c. Action Requirements: once ID must take steps to min to extent practicable

adverse effects on such habitat caused by fishing, and ID other actions to encourage conservation and enhancement of habitat.

i. Reg more squishy than bycatch, b/c bycatch relies on standardized methodology which this does not.

iv. If Secretary must make a decision within 30 days or the FMP takes effect as if approved. If the Secretary disapproves, he must explain why the FMP is inconsistent as a matter of law and allow a “reasonable amount of time” for the council to resubmit.

(5) Regulating Fishermena. The goal of regulation, represented in national standard (1), is to prevent overfishing and achieve

optimum yield.i. Overfishing : “a rate or level of fishing mortality that jeopardizes the capacity of a fishery to

produce the maximum sustainable yield in such fishery.” 16. U.S.C. § 1853(a)(10).ii. Optimum Yield : the amount of fish that will provide the greatest overall benefit to the nation,

particularly with respect to food production and recreational opportunities, while taking into account the protection of marine ecosystems.

b. These goals are usually reached by obtaining the proper balance between the maximum sustainable yield and maximum economic yield. This is a matter of science versus economics.

i. MSY : the yield of fish that will reproduce and will sustain itself over a period of time.ii. MEY : the most profitable amount of fish that can be caught without exceeding the MSY

c. General problem with regulationi. The general problem with open access fishery is the Tragedy of the Commons. There is nothing

to prevent fishermen from trying to catch everything before competitors. Competitors won’t act to conserve so why should other fishermen.

1. Fishermen will try to exercise short term gain without recognition of the long term consequences.

2. Economic restraints are generally the only incentive for fishermen to stop fishing. W/o restraints, fishing will continue until it reaches a breaking point where it b/c too exepensive to continue. However, by this time, the MSY has usually passed.

(6) Tools for Fishing Regulation

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a. Total Quotas: if successful, the stock size will increase- Problemsi. Bad for small fishermen - Total quotas encourage more fishermen to enter the system. This

results in a “race for the fish”, where fishermen use bigger, boats and better equipment and work longer hours.

ii. Encourages over-capitalization of fishing vessels - This creates economic inefficiency. It will sometimes result in MSY, but it destroys the MEY.

b. Closures- regulating the length of the season- Problemsi. “race for the fish” problem

c. Gear Restrictions- limiting catch by restricting the type or amt. of equipment- Problemsi. Increased cost for fishermen - destroys MEY

ii. Only good for short period of time - fishermen find ways aroundd. Licenses/Limited Entry- once total quota is devel., you then divide shares and give it to individuals-

Problemsi. Fairness - how do you allocate the indiv. quota?

ii. affects people’s livelihood (7) Cases

a. (not in our class) Fishermen Dock Co-op v. Brown (4th Cir.)i. Fishermen challenge the summer flounder quota set by Mid-Atlantic Council.

ii. Process of setting a quota:1. Stock assessment workshop- scientists who specialize in local fish stock determine stock

size, harvesting, habitat, etc.2. Monitoring Committee- reviews the stock assessment workshop quota3. Committee- each council has a large committee which reviews the quota4. Council- decides on the quota.

iii. Stock assessment workshop gave council a number of 19 million pounds (geometric mean over last five years) with a derivative on either side. Council picked the low number of 16 million, which had a higher % rate of reaching appropriate fish mortality rate.

iv. Fishermen said the council should have used geometric mean and higher numberv. 4th Cir.: MSA does not mandate that you use geometric mean. This is policy decision for the

agency. vi. Brown set precedent for courts to review these numbers.

b. **NRDC v. Daley (D.C. Cir.)i. incidental catch (bycatch) – 2 diff kinds of discards:

1. regulatory discards (ic aught wrong fish, send back)2. economic discards (too small, send back)3. summer flounder overfished, Council set a quota

a. proposed measure 97% likely to prevent overfishingb. Agency – came out w/ 18% chance to prevent overfishing

ii. Monitoring Committee suggested 14 million pounds and Council said 20. The FMP included the number 18 million.

iii. Court held this number was arbitrary and capricious under Chevron (1. plain language, 2. reasonableness). The quota must have a 50% chance of success. This one only had 18% chance.

1. Suggest conservation trumps economicsiv. If there are two plans, FMP should adopt the plan with most conservation.

1. Council should only look at economics after conservation. 2. Can look at economics only if there are alternative plans.

c. *AMI v. Daleyi. Agency can shut down industry if necessary for conservation.

d. NRDC v. NMFS (9th Cir. 2005)

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i. Rockfish on ocean floor, bcs of slow maturaltion an dlow rep rates thaey are very vunerbale to overfishing and exploitation.

1. What FMP is supposed to do: prevent overfishing, and achieve optimum yield2. Key issue: how long can Council take to rebuild fishery?

a. Not in statute, look to regs (options)i. Stop fishing altogether

ii. Mean generation time (how long for fish A to be repaced by fish B) – 33 years

b. Here, council went from saying could be built in 10 years, to rebuilt in 14 + 33 (mean gen time) = 47 years, and so increased the catch

3. Ct analysis:a. CG spoke and conservation is to trump economics (said ‘short as possible”

and NOT to exceed 10 years unless you have to. i. So if ‘short as possible’ CAN consider economics/community needs

ii. If > 10 years – may be okay t increase rebuilding time, but wont be also able to increase catch limit

e. Oceana v. Locke (2011 DC Cir)i. Recent 2006 Magnuson amendments (we said end OF now, and meant it)

1. CG said a. Have to have annual catch limits ANDb. Have to have accountability measures, if you go over catch limits

2. CT rules thata. Accountability measures for when you exceed ACL is mandatory.

f. Pacific Marine Conservation Council v. Evans (N.D. CA), 2002)i. Issues: E groups brought action against NMFS alleging they violated MSA and NEPA by

approving amendment to Pacific Coast Ground fish FMPii. Holding:

1. Amendment was insufficient to meet MSA mandate to reduce bycatch and bycatch mortality

2. EA prepared w/ amendment was inadequateg. NRDC v. Evans

i. Tile fish1. Record supports conclusion no evidence cists that gear caused identifiable impact on

tilefish2. Probably not going to be able to argue that lack of species and data means no fishing

a. MSA – seems to presume fishingb. (maybe in FMP, but if have not been identified as overfishing area, don’t have to

have FMP yet). h. Green Peace v. NMFS

i. GRPC sues NMFS for completing a SEIS under NEPA that was too narrow in scope and looked at alternative TAC level under which fisheries could be conducted?

ii. SEIS when:1. Significant chances in proposed action that are relevant to enviro concerns

a. New circumstances or information relevant to E concerns and bearing on action or impacts

iii. CT – since FMP is a program, SEIS has to be a broad programmatic analysis of FMPs as a whole, range of alternatives NMFS considered was inadequate.

(8) 1996 Amendments to MSAa. Minimize bycatch

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i. 44 million pounds of fish wasted every through bycatch.b. Identify essential fish habitat

i. Essential Fish habitat - “those waters in the substrate necessary to fish for spawning, breeding, feeding or growth to maturity.” 16 U.S.C. § 1802 (10)

ii. This habitat must be protected through developmental measures.iii. Some environmental groups have interpreted this to mean the ocean.

(9) ESA & FISHa. Critical Habitat designation is essential component of preservation of speciesb. (best available evidence, does not require conclusive proof)c. Case Law:

i. Right Whale & Critical Habitat (duty to timely designate CH) - CBD v. Evans (N.D. Ca, 2005)1. 34 years after listing whale, agency had still failed to designate critical habitat in the

Pacific Oceana. NMFS final recovery plan for whale called for ID and protection by 1996 of the

whale’s critical habitat. (not yet identifiable bcs of data, but once ID should be protected under act, time limit 5 years)

2. ESA requires:a. When species listed, b. Secretary concurrently publish a final reg designating critical habitat to “the

max extent prudent UNLESS secretary (here NMFS) determines CH is not then determinable (1533 (a) (3).

i. Regs define ‘not prudent’: 1. Not beneficial to the species, OR 2. Increasing the degree of [takings] threat to species, 50 CFR

424.12 (a) (I) (i)-(ii).

c. IF he designates:i. Can do it considering the economic impact or impact on national

security, or other impactii. Can exclude any area from CH if he determines that the benefits of

such exclusion outweigh the benefits of specify such area as CH, 1. UNLESS he determines that the failure to designate such area

will result in extinction of species concerned. iii. & has ongoing duty to man extent prudent and determinable, to revise

such designations as appropriate

d. IF he does not designate:i. After which anyone can petition for revision to CH

ii. w/ in 90 days S must make finding as to whether petition presents substantial information indicating that the revision may be warranted (1533 (b) (3) (D) (i)).

iii. IF S makes a ‘positive finding’ then S MUST determine and publish how he intends to proceed with the requested revision w/in one year:

1. W/in 12 months after receiving a P that is found under clause (i) to present substantial info indicating the req revision may be warrant, S shall determine how he intends to proceed and promptly y publish notice of such intention in fed reg

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3. Delay might be tolerated if there was no imminent threat to them there, could protect themselves

a. But here low abundance, scattered distribution = delay of any kind brings species closer to extinction

b. & here, best available evidence (which S has to use under ESA) supports CH designation

i. The agency MUST act on the best evidence available to the max extent prudent

ii.4. Holding:

a. CG at least expected the decision to be made EXCEPT where designations are simply not determinable. HERE agency’s conclusion that issue was not ‘determinable’ was not supported by admin record and was therefore arbitrary and capricious.

ii. Stellar Sea Lion & ESA/SEIS Greenpeace v. NMFS (W.D. Wa, 1999)

1. Challenge to FMP under ESA and NEPA

a. ESA Requires:i. Imposes duty on fed agencies to ensure that any action taken by fed

agency does not jeopardize endangers species OR adversely modify their CH

1. Sec 7 of ESA – ACTION agency is to consult EXPERT agency to determine if jeopardy OR adverse modification is likely to occur

a. Result: Biological Opinion (from EXP A)b. [FMP can be agency action] c. * remember JEP and AM are two separate standards,

you have to consider and deal with both in Bi OP.

2. Once Jep/AM determination made, consulting agency MUST propose Reasonable and Prudent Alternatives:

a. Alternative actions that can be taken consistent w/ purpose of project but CA believes would avoid JEP/AM

b. Valid RAP Requires (under regs):i. Consistent w/ purpose of underlying action

ii. Consistent w/ action agency’s authorityiii. Be economically and technologically feasibleiv. ‘avoid the likelihood’ of jep or am

b. NEPA requires:i. EIS must be prepared on proposals for legislation and other major federal

actions significantly affecting the quality of the human environment 1. FMP = major federal action

a. = ongoing (as often amended)

ii. IF action is ongoing, then environmental analysis also needs to be occurring

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1. IF agency finds changes are not substantial can prepare an EA and a FONSI rather than a SEIS

2. * the SEIS must contain a broad range of alternatives to proposed federal action, while a EA can simply approve action as proposed

iii. EA/FONSI is Not adequate (tiered off old EIS) IF1. The agency makes substantial changes in the proposed action

that are relevant to environmental concerns OR2. There are significant new circumstances or information

relevant to environmental concerns and bearing on the proposed action ot its impacts (i.e. a subsequent ESA listing of species).

iv. SEIS Scope1.

2. Holding:a. E supported NMFS determination under ESA that Pollock fisheries but NOT

mackerel fisheries were likely to jeopardize sea lionsi. Pollock –

1. sig part of catch coming from sea lion CH2. SL are increasingly dep on P as prey3. Would cause Jep/AM bcs they:

a. Operate in same areas where SL feedb. Operate during seasons when SL may be especially

vulnerable to competition and reduction in available prey

c. Catch Pollock at same or overlapping depths at which SL feed

d. Catch same size Pollock on which SL feedii. Mackeral

1. Also part of diet2. Also taken from SL CH3. * Agency found that even though mackeral fisheries were

causing localized depletions of available prey, the proposed changes to fishery structure contained in FMP minimized risk of localized depletion (spreading it out in time and space) and therefore would not cause Jep/AM.

b. (RPA) Reasonable and prudent alternatives under ESA were arbitrary and capricious

i. even though temporal compression of concern, RAP don’t seem to disperse fisheries temporarily

1. might actually result in removal of more Pollockii. More importantly:

1. NMFS completely failed to analyze how these individual measures will avoid AM /Jep

2. And FAILED to explain how various management systems work together

3. **when agency fails to articulate a rational connection between facts found and choices made

a. MUST show how RAP avoid Jep/AM

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i. If they explain how, okay4. (consultation handbook, ESA section 7, says that its imperative

BiOP contain a thorough explanation of how each component of the alternative is essential to avoid Jep/AM).

c. NEPA requires preparation of a broad SEIS for ground fisheriesi. Here, FMP went through >40 amendments, and no SEIS for 20 years

ii. When they did SEIS they only analyzed new info under range of alternatives dealing w/ ONE aspect of FMP (TAC levels)

1. Instead of analyzing new info by looking at broad range of alternatives’ reflecting the broad scope of the FMPS

iii. **FMP as a whole, and not just methods used to set TAC levels, is the proposed action

1. under which there is sig new info/ sub. Changesiv. The SEIS discussed generally, but did not provide a range of alternatives

dealing with them 1. i.e.

a. decisions about location/timing of fisheries, exploitation rates and species, waste, discard, habit alteration, …

v. (P argue the action was setting TAC levels in the ground fish fisheries)

d. CT – a narrow SEIS dealing only with TAC levels would not satify NEPA. The FMP involve a myriad of interrelated regulations to manage fisheries. In light of significant changes to these FMPs and the new info about the broad range of issues covered by these regs, CT concludes as a matter of law NEPA requires a broad programmatic SEIS in order to fairly evaluate the dramatic and significant changes which have occurred in the ground fish fisheries.

i. But don’t require detailed alternatives for each aspect of plan

iii. Adequacy of BiOp for FMPs - Greenpeace v. NMFS (II, 2000)

1. Challenged FMP for ground fisheries in Bering sea2. Holding:

a. FMP constituted agency action subject to consultation under ESAb. NMFS BiOp was not properly limited to effect of single year fishery on stellar

sea lionsc. BiOP failed to adeq analyze fishery management measures

3. This is second BiOpa. MUST prepare a BiOP equal in scope to the FMPs

i. Concluded that FMPS in entirely = agency action requiring consultation (ESA defines action broadly)

b. **9th Cir – BiOps under the ESA are co-extensive with the agency actioni. rejected idea that agency could meet ESA obligations by

incrementally addressing portions of agency action as each portion went into effect

c. Also agrees w/ industry that adoption of FMP different, discrete action from authorization of yearly fisheries

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i. BUT not that NMFS did not have to address entire FMP in BiOpii. *an agency can not unilaterally relieve itself of full obligations under

ESA by narrowly describing agency action at issue in BiOp.1. Here, old BiOps no longer sufficient (sig changes made to

fishery since then)a. Rendering continued reliance on 1996 biop legally

impossible4. NMFS in violation of ESA until time it puts a comprehensive BiOp in place

a. Re-initiation of consultation does not moot claimb. Retains ability to provide relied

d. Alaska v. NMFS i. Recovery has to be considered as part of JEP/AM determination

1. Jeopardy – an action that reasonably would be expected to reduce appreciably the likelihood of the species’ survival AND recovery

2. Adverse Modification - an action that appreciably diminishes the value of CH for survival OR recovery of a species is

ii. Best Evidence (used to make sure its actions wont AM/Jep) does NOT have to definitely prove causation

1. The fact that evidence is weak, non-dispositive, does not render agency determination A and C, IF it employs best evidence available. (not TORT)

iii. Subsets1. SPECIES (under ESA)

a. “any subspecies of fish or wildlife or palnt, and any distinct population segment of any species of fish/wildlife that interbreed when mature.”

b. Allowed to list separate population segments (and provide diff protection for each)

i. * 9th Cir – the effects of an action on a SUBSET of DISTINCT population CAN potentially jeopardize the survival/recovery of the species or distinct population segment as a whole.

c. JEP/AM should be based on effect of action on ENTIRE population, BUT allows that sub-units of population OR critical habitat MAY serve as basis for determination WHERE:

i. The impact on the sub-units is ‘likely to result in significant adverse effects throughout the species’ range, or appreciably diminish the capability of the CH to satisfy essential requirements of species” (9th Cir).

iv. Meaningfully Cooperate (§6)1. Sec. 6 provides: agencies carrying out duties under ESA “shall cooperate to max extent

practicable with the states specifically including consultation “for the purpose of conserving any endangered or threatened species”

a. Agencies can enter into agreements w/ states to mange and conserve, and fund such agreements

b. Policy Statement issued by NMFS/FWS says NMFS must:i. Inform states agencies of any fed agency action likely to adverlsy affect

listed speciesii. Request an information update from state agencies prior to preparing the

final BiOPiii. And recommend to fed agencies they provide state agencies w/ copies of

final BiOp2. NO req

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a. For early showing of sec. 7 decisionb. May not be judicially enforceablec. And did not fail to co-op here.

(10) MMPAa. Policies of the Act

i. Set 6 policies (see 482)b. Requirements:

i. Applies to – any marine mammal which 1. Is morpholohically adapted to the marine E (including sea otters, ect)2. And primarily inhabits the ME (such as polar bear)3. & covers any part of MM, such as raw/dressed/died/ skin and fur

ii. JDX divided in § 3 (12)1. SOC (through NOAA, and NMFS)

a. Has responsibility for cetaceans and all pinnipeds except walrus2. SOI

a. Has responsibility for all other marine mammals (sea otters, manatees, walruses, polar bears)

i. Research by US GEOii. Regulatory/management actions by FWS

3. MM commission – oversight commission appointed by Presc. Federal Pre-emption

i. 109 (a) Replaced all state law and regulation with federal control1. “no state may enforce or attempt to enforce, any state law or regulation relating to the

taking of any species of MM w/in the states”2. Unlike ESA 6 (f) – which allows states to supplement taking prohibition for listed species

(may be more restrictive). 3. §17 of ESA – says that unless specified in act, no provision of the ESA shall take

precedence over any more restrictive conflicting provision of MMPA. ii. Although amended in 1981- for transfer of management

1. S has to determine state has program consistent w/ act2. Including process for finding the status of stocks and whether/to what extent taking

should be allowed3. But NO taking allowed UNTIL state conduct adjudicatory hearings to determine if

species/stock involved is w/in OSP range and how many animals may be take w/o reducing the species/ stock below that level.

d. OSP (Optimum Sustainable Population)i. Establishes a threshold for determining when certain activities are to be prohibited or restricted

1. Ex. You cant waive moratorium for species below OSP (depleted)

2. 2 (6) – whenever consistent w/ primary objective of maintaining health and stability of marine ecosystem, “it should be goal to obtain an OSP keeping in mind carrying capacity of the environment”

ii. IS the population size that falls within a range from 1. the population level of a given species of stock which is the largest supportable w/in the

ecosystem TO2. pop level that results in max net productivity level (lower bound)

a. MNP – the greatest net annual increment in population numbers or biomass resulting from additions to the population due to reproduction an/or growth less losses due to natural mortality.

i. Generally interprets (for some species) as 60% of stock carrying capacity

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iii. BUT for most commercial fishery1. OSP and MNP are no longer threshold for permitting incidental take 2. So

a. OSP remains the MMP species/stock conservation goalb. And retains important reg significancec. It has NOT served as threshold for authorizing incidental takes of MM in

domestic commercial fisheriesi. Alternative mechanism now- potential biological removal level

iv. IF below OSP, then species is DEPLETED1. If depleted, THEN moratorium on taking cannot be waived!

e. Moratorium & Its Exceptionsi. 101 (a) – establishes general ban on taking og MM through areas subject to US JDX and by any

person, vessel, or conveyance subject to JDX of US on high seasii. 3 (13) – Take

1. harass, hunt, capture, ect…2. by FWS regs

a. including any of following: the collection of dead animals or parts thereof, the restraint or detention of MM, no matter how temporary, tagging a MM, or negligent/intentional operation of aircraft or vessel or doing any other neg/intentional act which results in the disturbing or molesting of MM.

3. Harras (see 487) – act of pursuit, toment, annoyance, a. Potential to injureb. Or potential to disturb

iii. Takes Allowed for1. For scientific research2. For public display3. During photo/education/commercial purposes4. To enhance survival/recovery of species/stock

a. ESA or threatened MM incidential to commercial fishing operation5. By citizens of the US of small numbers of MM incidential to a specief actity OTHER

than commercial fishing w/in specieif geo period a. For not > 5 years (consecutive) or if by harrasment, a one-year period

6. By Indian, Alaskan, …7. By non leatheal, to protect personal safety, ect8. To free MM9. Catch all

iv. BUT IT1. Must be humane

a. Method involving leas amount of pain/suffering2. And consistent w/ purpose of act

v. Can also be waiver1. Has to be consistent w/ act 2. And not a depleted stock/species

vi. 109 (H)1. also fed/state/local gvt official or person formally design under act can take in the course

of her duties IFa. for the protection of the animalb. protection of public health/welfarec. non-lethal removal of nuisance animals

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vii. COMMCERCIAL FISHING Take PERMIT1. Only 101 (a) (2)

a. Have to meet 103 (sworn adjudicatory)b. Only to yellow fin tuna, and Japanese high sea fisheries in salmon in US waters

viii. DOMESTIC FISHERIES (post Kokechick)1. No longer have to obtain IT ermit, or show in OSP2. NOW:

a. Allowed to take MM incidental to operations by registering vessels and abdigin by certain requirements

b. And Sec allowed to establish fishery-specific limits where necessary to reduce such taking to less than the potential biological removal level (PBR) for the stock

i. PBR – max take from stock w/o (+natural mortality) w/o compromising ability of stock to achieve OSP

ix. STOCK assessments (see 493)

f. Case Law:i. Kokechick Fishermen Ass’n v. Secretary of Commerce (D.C. 1988)

1. * DC indicated lack fo adeq info on many affect MM made it unlikely any general permits could meet MMPA’s requirements

a. w/o info necessary to support OSP determination, for all species taken in a fishery, agency could NOT make the findings requires to promulgate regulations authorizing the incidental take of MM

b. CONSEQ – render a ‘de facto depleted’ status for all MM for which population determinations had not been made

2. D.CT PI Secretary of Commerce from issuing permits allowing foreign commercial fisherman to take salmon from US conservation waters

3. Holding: S could NOT issue permit under MMPA w/o first determining extent to which northern fur seals affected by fishing operation (was in EEZ)

a. GILNET use i. Even though only trying to get salmon, also gets mammals proteted by

MMPA1. That result is absolutely prohibited by MMPA, UNLESS

pursuant to req of act SOC specifically grants permission of taking MM incidental to commercial fishing

b. Here, permit only gave quota for porpise, while other MMPA protected species (like fur seal, sea lions, ect could be taken)

c. Since 1981 MMPA moratorium applies to Japanese commercial fishing in EEZ

4. ISSUE: can the SOC legally issue a permit allowing incidental take of one protect MM species knowing that other protected MM species will be taken as well.

5. MMPAa. Moratorium on taking MM, UNLESS

i. Taking of MM incidental to fishing operation REQUIRES:1. Taking authorized by regs promulgated through forma

rulemaking proceedings and a permit issued by SOCa. Before Permit, SOC

i. Must be assured that taking is in accordance w/ sound principles of resource protection and conservation (provided in purposes/policies of MMPA)Set out in 16 USC 1361 (2) 1361 (6)

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ii. Section 1361(2) provides: iii. [Marine mammal] species and population stocks

should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population....

iv. Section 1361(6) reads in relevant part as follows: v. [I]t is the sense of Congress that [marine mammals]

should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine eco-system. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.

vi.2. & the taking must meet req of MMPA and be consistent with

primary goals of protecting MM3. Consonant with these principles, the MMPA provides a scheme to

determine the number and kind of marine mammals which can be taken incidental to commercial fishing operations. Under this scheme, the Secretary is obligated to determine that the permit applicant has carried its burden of proving that the taking sought does not disadvantage the species involved and is consistent with the policies and purposes of the Act. The Secretary, thus, must first *801 **122 determine that the requested taking will not be to the disadvantage of the affected species and population stocks. 16 U.S.C. § 1373(a). Pursuant to this determination and in conjunction with the formal rulemaking proceedings, the Secretary must publish statements on population levels and the expected impact of the proposed regulations on the optimum sustainable population of the affected marine mammal species. 16 U.S.C. § 1373(d). Any decision the Secretary makes must be consistent with the MMPA “immediate goal” that

4. the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishery operations be reduced to insignificant levels approaching zero mortality and serious injury rate....

a. 16 U.S.C. § 1371(a)(2). 5. While the Act may not prohibit issuance of a permit where there is

only a very remote possibility that marine mammals for which an optimum sustainable population has not been determined may be taken incidental to commercial fishing, such a situation is clearly not the case here

6. HERE, a. SOC concluded not possible to make required finding that northern fur seal pop

from island stock is w/in OPTIMUM SUSTAINABLE POP levels (or in other stock was depleted)

b. THEREFORE – it could not be determined that this protected stock would not be disadvantaged by takings incidental to federation’s fishing operations

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i. And so in either case could not find that the absolute requirement for issuance of permit and waiver of MMPA was made.

7. He issued permit anyway, so long as did not take sealsa. So basically allowed to take MM for price – the civil penalties imposed for

takings8. * Secretary has no authority to issue a permit that allows conduct prohibited by the acts

a. there is NO negligible impact exception to permitting requirements in MMPA where incidental takings are not merely a remote possibility but a certainty

i. although there is narrow exception for incidental taking having a negligible impact on species (by US citizens)

ii. & did loosen req for tuna industry

b. NO balancing of MM interest against fishery interest

ii. Earth Island Institute v. Hogarth, 494 F.3d 757 (2007)1. Facts: Secretary of Commerce found that there was insufficient evidence to show that

tuna purse-seine fishing harmed depleted dolphin stocks in ETP (Eastern Tropical Pacific Ocean), which triggered change in dolphin-safe label standard for tuna.

2. Background:a. IDCPA (1997) – statute requires that the SOC (through NOAA) conduct

scientific studies to determine if the tuna fishing industry is impacting the dolphin population. And ONLY if the SOC finds that it is not, then it can somewhat relax the strictness of the dolphin-safe label requirements.

b. Dolphin Protection Consumer Information Act – barred tuna sellers from labeling their products as ‘dolphin-safe’ IF the tuna was caught by encircling dolphins in these nets.

c. Panama Declaration – delegates agreed to allow ‘dolphin-safe’ labels so long as no dolphins were observed killed or seriously injured during the (set?).

d. BUT Congress refused to relax standards without AFFIRMATIVE evidence that fishery was not significantly contributing to the slowing recovery rate of dolphin stocks.

e. 1991 – despite inconclusive evidence the SOC found that the fishing was not having a SI. BUT environmental groups brought suit, enjoining the SOC from instituting the more flexible labeling standards

3. D.CT – found the SOC ‘s determination was A and C (because of the inconclusive evidence) appealed. (affirmed)

a. It was a default finding of no impactb. Round Two – same thing, affirms the D.CT’s decision that the SOC finding was

A and C. 4. District Court Opinion (Summary Judgment on 3 grounds) & would not remand again,

instead held that dolphin safe labels could NOT be used for tuna caught with these nets. a. Because agency did not conduct required studies (from which scientists could

draw population assumption)i. A and C – failed to consider an important aspect of the problem

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5. Finding was implausible because it ran so counter to the best available evidence (insufficiency of data should be resolved for the species) (from CG intent to change status quo ONLY if no impact)

6. A compelling portrait of political meddling – SOC had considered factors, such as foreign policy considerations, in reaching its decision, and these were NOT factors that CG had intended the SOC to consider.

a. Plaintiffs – argue that the court ignored deference

iii. Court – no deference due when you ignore your own studies/methods1. & because science was inconclusive D.CT was right in finding that the SOC’s finding

was NOT rationally connected to best available science.(11) OCSLA

a. Outer Continental Shelf Lands Acti. What the segmentation/stages?

1. Try and find notes

b. What the Secretary MUST do:i. § 18 - Prep 5 year oil/gas leasing program and MAY offer leases only in areas included in 5-year

planii. 5 year plan goes through 4 phase public notice process

iii. lease sales after NEPA and CZMA reviews, lease sale by competitive, sealed bidding (opened and announced in public)

1. tarcts/blocks – but no more than 5260 acres, or 3 mi squareiv. lease then issues

1. usually 5 year for shallow, 10 in deeper waters2. and thereafter so long as paying production occurs3. subject to terms/conditions4. and all applicable laws now and in future

(12) Climate Change, The Arctic, and Ocean Acidificationa. Arctic (ring of continents surrounding the ocean) (also relatively fresh, also some areas can be very

productive) (sea ice) (food webs) b. Ocean acidification- more CO2 leads to changes in water chemistry making it harder for organisms to

form shells/skeleton. [evil twin of climate change]c. Exclusive Economic Zone, extends out 200 miles. d. when under OCSLA would you have to consider transportation of oil field to somewhere else (lease sale

stage look ahead (really speculative on if there is going to be some development)i. the BP spill happened at exploration stage

e. MMPA permit for incidental take (harassment), ESA consolation, CWA/CAA permits, and OCSLA variety of permits (BOEMMER) needs to issue before they can go forth and explore.

f. MMS split (BOEMMR - most of MMS former facilitation of industry) BESSEE focused more on operation of rig

g. READINGSi. Impact Assessment (from arctic council, has no force of law

1. difference in poles (ant arctic, continent surrounded by water, arctic water surrounded by continents)

2. one way to resolve continental shelf JDX issues (concede to law of sea?) Arctic council - not a lot on it, don't have a lot of hard law/instrumental instruments. (versus top of world commons?)

ii. Ocean Coastal Law Txtbook 1. no comprehensive system in place to address climate change/ ocean acidification

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2. legal tools to address climate changea. (a) CAA- in Mass v. EPA (wanted EPA to regulate GHG from mobile sources)

(are CO2 emissions a pollutant for CAA; CT - looked to definition in CAA, which is very broad)). (CT- EPA had stat authority to regulate GHG, but did not say it had to necessarily: only avoid regulating by determining whether GHG could reasonable expect to endanger public welfare/ and cause and contribute to climate change). (EPA findings, NOW they regulate)

i. (b) easier for court to deal with standing of the states in Mass v. EPA because of different property and other things that they had in play that could be affected by climate change. [special solicitude afforded Mass because of it being a state). (BACT, 109, tool under CAA that can be used, although not tailored to this problem (NAAQS)

b. (b) NEPA - major federal action sig. affect Envt. but is LIMITED (comes in context of single decision making context? (have to look at cumulative impact, 1 tool agency can use. but how effective cumulative effect analysis on climate change).

c. (c) ESA - first species listed in regard to CC were coral (changes associated with bleaching and warming temperatures). Polar Bear Listing (2007 proposed listing as threatened species); interior dept did not meet first deadline, DID list it in MAY 2008. [in meantime however, DOI sold billions of dollars of leases in sea where polar bear is located). IF PB listed before chuckchee sea sale, would it have had an impact? (may not have, WOULD have triggered requirements of ESA: listed species/ federal action that may affect --> duty to consult under section 7 of ESA, which determines if proposed acton is likely to cause harm to species, or adversely modify habitat for species).

d. (d) 4 d rule, how effective has PB listing been as a tool for fighting climate change? *one reality of having PB listed, how do you define action on which you now consult (not coal fired plant in kansas, but more direct impact that are not really driving population of PB (i.e. not addressing global problem).

iii. Kilivina Case (potential tool: public nuisance claim)1. Facts - result of GW sea ice attaches later/ i.e. subject to coastal storm waves and surges,

town now is becoming uninhabitable. (nuisance claims).2. claims - 4 c/a (1) fed claim nuisance (2) state law on nuisance (3) conspiracy ? (4)

contact?3. Holding - court says they don't have Article III standing. 4. to prove public nuisance - an unreasonable interference with a right common to the

general public. CT must look at weighing gravity of harm against the utility of the conduct.

iv. Complaint (ocean acidification1. 303 (d) - suing EPA for violation of 303 (d) of CWA, claim is that EPA unlawfully

approved WA list of impaired water bodies, because did not include waters hampered by ocean acidification.

2. WA had numeric water Q standard? Relief - (DECLARATION EPA violated its duties, A/C when it approved WA 303 (d) list; wanted an ORDER compelling EPA to add impaired waters due to ocean acidification to WA 303 (d) list).

a. Case was SETTLED.

(13) Emerging Ocean Use a. Ocean Renewable Technologies (wave and tidal projects (WC) and offshore wind projects with some

tidal (EC)). b. Legal Framework

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c. Regulatory Authorityi. Over OFFSHORE WIND

1. BOEMREii. Over WAVE

1. BOEMER & FERC a. FERC – the FPA (consultation requirements under 10 J and 18 which require

explicit provisions for FWS and NMFS to condition the licenses for protection of fish and wildlife)

iii. Over WILDLIFE (ESA and MMPA and MBTA and 1. FWS and NMFS (see FPA section 10 (j) and 18).

iv. Over Rivers/Harbors (ACT)1. Corps under RHA is required to (see Alliance case)

a. HAVE to protect navigation (make sure rivers/harbors remain navigable). v. CWA

1. Have to get 404 permit (fill permit), and 401 (WQ certification)a. 404 – CORPS with EPA and potentially FWS

i. may be DSL if within 3 n.mb. 401 – state WQ certification

i. DEQvi. CZMA

1. Consistency review done by state (vary state to state)

vii. MSA (Magnusson Issues)1. EFH (requires consultation with NMFS, not a ton of teeth however).

viii. NEPA1. Action agency

a. BOEMRE on LEASESb. For wave project may do joint EIS

ix. NHPA1. State Historic Resource? Orffice + NAPA?

(2) Ten Tax Payer Casea. First case against wind info tower, challenge against Corps giving them Section 10 permit under RHAb. P think its important that MGS gave MASS ability to regulate for fish

i. Argue tower would have indirect effect on fish, so it should be regulated. ii. Ancient title –

1. 3 mile boundary – a. S.CT said that sea bed is federal (US enjoys exclusive title in submerged lands

under federal waters, and federal waters are beyond 3 miles)b. DEPISTE fact CG said they could regulate fishing in 3 mile area, did not say

giving up ownership/boundary past 3 mile lands. c. EVEN IF you granted that MASS might have some authority, (does not apply, is

inconsistent with federal law). i. Federal law is interstitial?

1. If they don’t pass laws on it, state law CAN be relevant (can use state law to fill in gaps in federal law off a state’s coast)

2. BUT – problem here is state has already disclaimed nay JDX over submerged lands here .

iii. Tidewaters (not just waters that ebb and flow) (IT is thinks to harbor or shorelines)c. CT on interplay between OCSLA and MSA (Mag. Act)

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i. MSA does not repeal or amend anything in OCSLA, (sure CG said you could regulate fisheries, but did not give up other rights in area)

1. Would effectively give them veto power with use over sea bed, which is FUNDAMENTALLY inconsistent with OCSLA

(3) Alliance (2)a. Challenging permit under RHA, but actually pointing to other statute (OCSLA). b. About Corps JDX under OCSLA (obvious they have JDX under RHA)

i. Whether it has to be limited to purposes for extracting mineralsc. Impact on property interest is negligible d. CT also a broader benefit than just to developere. NOT going to get into issue of larger wind farm (considerably larger)

(4) What happened with Cape Winda. Mistake – never talked about with Kennedyb. OCSLA § 8(p) – can grant a lease for transportation of other resources OTHER than oil and gas.

i. Gives secretary right to grant lease, easement, right of way, for activities that --- other than oil and gas

ii. Also requires the secretary toiii. § 8 (p) (i) (a) – provides for ?

(5) HOW TO GET A LEASE (2 basis for leases to be issued)a. Competitive -Doing lease auctions of particularly areas of OCS b. non-competitive- any one can come forward and ask to lease an area

(6) may hang up issuance of regulations? a. (see his law review article)b. problem is that it gave MMS authority, but it did not give them exclusive authority (with FERC)

(7) Why is wind and wave treated differently in FPAa. Because FPA specifically applies to HYDROpowerb. See Aqua energy –

i. Why didn’t FPA 2005 not fix problem of inner agency regulatory power1. Gave MMS license authority and has a (SAVINGS CLAUSE – nothing in it replaces/

limits any other federal agency under any other federal law). a. FPA was not waived, FERC says we have obligation ot make sure any

hydropower has permit?b. MMS insisted needed license

c. Problem ultimately solved?d. Once MMS finally put out regs, interpreted regs to require two site specific EIS for a wind project,

MMS/BOEMER saying you needed full site specific EIS just to go through leasing process, before you figure out whether construction details

i. Is argument leasing itself did not create any impacts. ii. 8 years for licensing project

e. Licensing, leasing down to around 5 years(8) What has Obama Done (to effect where wind farm located)

a. Besides getting regulations outb. CMSP – process of looking at all what is going in ocean, figure out what has uses, and basically zoning

themi. Does EO require zoning? NO –

ii. FIRST STEP in Marine Spatial Plan1. Data collection

(PLANNING)

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(9) OCEAN Zoning

a. Hypoi. Planning (we have) does NOT equal zoning

ii. Can a state establish a coastal zone management program in such a way as to exercise an effective veto over renewable energy development off its coast?

1. 307 c2, 307 3a. two diff zones under CZMA, 2 standards:

i. 2- IN the coastal zoneii. 3 – outside that affects coastal zone resources

1. (most wind projects)iii. so its how is the coastal zone defined, in or outside of it there is higher threshold, more ability to

restrict in inside coastal zone, ect. (14) **SECT of commerce has final sign off?

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