Overview of U.S. legislation on fisheries to Protect Biodiversity in Marine Ecosystems

    
By Tia Rose MSc.

     We humans have been fishing for nearly 40,000 years (wikipdia). Feeding the world over, the ocean has sustained our populations then as it still does today. It's estimated that “ecological communities on continental shelves and in the open ocean contribute almost half of the planet's primary production, and sustain three-quarters of global fishery yields” presently (Worm, B. 2003), but not for long. If we continue our current practices, according to Boris Worm, it is predicted our fisheries will collapse by 2048 (Worm, B. 2003). As fishing can alter the structure, function, productivity, and resilience of marine ecosystems‟ (Dayton, et al. 2002) recent scientific analysis suggests that the global ocean has lost more than 90% of large predatory fishes.‟ (Worm, B. 2003) This loss of marine biodiversity “is increasingly impairing the ocean's capacity to provide food, maintain water quality, and recover from perturbations (aka: pollution).” (Worm, B. 2006) Such concerns have moved the United Nations to resolve the return of global fish stocks to healthy levels. (United Nations. New York. 2002) 

     Worldwide, the average amount of fish consumed each year per capita is approximately 14. 96 kg. (FAO UN, 2008) The U.S. annually consumes 16.4 kg (FAO UN, 2008), just slightly higher than the world average. As one of the largest consumers of fish, what are the U.S. federal regulations and legislation for conserving and protecting biodiversity of fisheries? The Marine Mammal Protection Act, Endangered Species Act, and Magnson-Stevens Act are the three major Acts that govern US fisheries and are the focus of this overview.

Marine Mammal Protection Act

     The Marine Mammal Protection Act (MMPA), signed and enacted in 1972, was the first piece of legislation to manage and conserve a natural resource through an ecosystem based approach. Under the MMPA, it is illegal to take "any marine mammal; take defined as to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal" (Marine Mammal Protection Act, 1972). The Act also places a moratorium on the sale, import, and export of marine mammal products and parts. It also sets regulations with regard to scientific research in the wild and the public display of captive marine mammals. 

     There are exceptions in the MMPA that allow for marine mammals [to] be taken incidentally in the course of commercial fishing operations" (MMPA, 1972) and for Alaska natives [to] hunt marine mammals for subsistence purposes, and [are allowed to] possess, transport, and sell marine mammal parts and products"(Kubiszewski, 2007). Exceptions to the MMPA also grant, to those who apply for and are authorized, special permits which allow incidental take of marine mammals during the course of an otherwise legal activity"(Kubiszewski, 2007).

     The National Oceanic and Atmospheric Administration (NOAA) oversees the implementation of the act through the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). Manatees, dugongs, sea otters, and polar bears are under the care of FWS. Whales, porpoises, seals and sea lions are managed under NMFS. The management of marine mammals in captivity falls under the care of the Department of Agriculture.

     The MMPA also established a Marine Mammal Commission that is required under section 204 of the Act to transmit an annual report to Congress on its activities and accomplishments during the immediately preceding year (Marine Mammal Commission). In the 2007 annual report released in October of 2008, a number of risk factors were identified as threats to marine mammal species and stocks. Those factors include direct and indirect fishery interactions, harmful algal blooms, contaminants, disease, anthropogenic noise, coastal development and habitat loss, and ship strikes (MMC Annual Report, 2007). Given that the human population is expected to reach 9.4 billion by 2050 it can be expected that these issues will only exacerbate the negative impacts on the marine ecosystem.
 
     Since the inception of the MMPA several key cases have brought to question the effectiveness of its ability to properly manage and protect marine mammals. An example of this is the United States v. Hayashi case in which a local Hawaiian fisherman fired two rounds from a shotgun at group of porpoises to stop them from eating his catch of Ahi tuna. Hayashi was charged with "knowingly taking a marine mammal" in violation of the MMPA. He was sentenced to one year unsupervised probation and a $500 fine. Hayashi appealed this decision to the United States District Court for the District of Hawaii, where his conviction was affirmed, and then to the Ninth Circuit Court of Appeals, where his conviction was reversed. The Ninth Circuit Court determined that Hayahi's actions did not disrupt the porpoises behavior and stated that “reasonable actions ... not resulting in severe, sustained disruption of the mammal's normal routine ... [of] eating fish or bait off a fishing line are not rendered criminal by the MMPA or its regulations” (United States v. Hayashi). This determination on the definitions of “take” and “harass” given by this appeal case, I believe, went against the spirit of the MMPA.
 
     Another consideration is the jointly managed resources of marine mammals between the federal government and the Alaskan Natives. One resource of concern is the walrus populations of the Arctic, as Alaskan natives are permitted to utilize marine mammals as a cultural heritage for sustenance and economic gain. Harvest guidelines have been established for walrus hunting practices requiring the return of all meat. However, it's been reported that only some red meat is retained while the rest is wasted. With regard to this there are several challenges: the walrus population may be vulnerable to continued reductions in sea ice and marine productivity, the methods used to utilize harvested walrus have become more limited, the limits on the walrus harvests are more relaxed, and the value of ivory and need for cash is greatly enhanced (M. R. a. J. L. Joly, 2008). Legally restricting the allowable take of walrus is impossible without scientific population analysis which is lacking, further showing a limitation of this Act in protecting marine mammals effectively.
 
Endangered Species Act
 
     Following on the heels of the Marine Mammal Protection Act, the Endangered Species Act (ESA) was signed and enacted in 1973. The widest ranging environmental law in the United States to be passed and, at the time, labeled the world's most powerful environmental legislation (Schwartz, 2008), the ESA is designed to protect endangered species and threatened species, and to take such steps, as may be appropriate, to achieve the purposes of the treaties and conventions (Endangered Species Act 1973). The Convention on International Trade of Endangered Species of wild Flora and Fauna(CITES) and the International Convention for the High Seas Fisheries of the North Pacific Ocean, as well as others, are just some of the treaties and conventions signed at the international level that the ESA has vouched to conserve endangered species.
 
     However, given that the US has not ratified the Convention on Biological Diversity, how effective is the ESA with protecting marine biodiversity in America? Does focusing on singular species prove to be adequate protection for an ecosystem? The ESA certainly shows that once a species is placed on the list the status of that species improves rather than deteriorates. Working in a dual capacity through not only extinction prevention but species recovery, the listing, protection, and possibly delisting of species is accomplished.
 
     The National Oceanic and Atmospheric Administration and the United States Fish and Wildlife Service share the responsibility of administering the ESA. Marine Species are managed under NOAA by the NMFS. It's been noted that the inability of government to fully empower the agencies to implement the law has been the most notable failure of the ESA (Schwartz, 2008). Coupled with sparse funding, the decline in listed species in the recent past, and the delay of critical habitat determination has impacted the effectiveness of biodiversity protection in the last 40 years since the inception of the ESA.
 
     The ESA recognizes that the consequence of economic growth and development untempered by adequate concern and conservation (ESA, 1973) is the cause of species decline and extinctions. Critical habitats, therefore, are more important than ever, as habitat loss and degradations occur from development and are the leading threat to species. Designating a critical habitat for an endangered species does not preclude a property from being developed (Schwartz, 2008), but will require consultation with federal agencies under section 7 of the Act. This has caused great controversy for property rights advocates who would prefer the elimination of critical habitat designations from the ESA. Because of this resistance, only 494 listed endangered species have critical habitats out of the total 1351 listed (Schwartz, 2008).  Another unforeseen negative impact of critical habitats is the increase in property values of surrounding areas, as people enjoy living near these protected zones. This increased development places pressure on the near endangered species through the edge effect (the changes in the population or community structure that occur at the point where two habitat types meet).
 
     Recovery Plans also play a considerable role in maintaining and delisting endangered species, as a well-constructed recovery plan, can be an important focal document "and foster proactive management" (Schwartz, 2008).  However, recovery plans obligate neither funding nor actions "and often social interest and politics retain the capacity to trump strict biological consideration when it comes to recovery expenditures" (Schwartz, 2008).  As shown with the iconic bald eagle, that received $9.8 million in recovery funding, which is the accumulated total of 894 species (67%) with the least funding (Schwartz, 2008), skewed funding of charismatic species reduces the likelihood of rare species and overall biodiversity of being protected. If all species were equally valued, funding would be allocated based on threat and potential for recovery instead of political influence.
 
     Little of this matters should species not be listed in time, or at all, on the endangered species act. As many thousands of species in the “warranted but precluded” pool remain unlisted, more often than not they will become extinct waiting to be protected while those who are listed fare better. The data suggests positive impacts outweigh the negative ones as recovery outnumbers extinction 14 to 7 among the species delisted because of population change (Schwartz, 2008).

    The absence of any shark species listed on the federal ESA is a failure of the US fisheries in both listing and recovering marine populations that directly correlate to the health of biodiversity of the marine ecosystem. As stated above, the US is party to several international conventions and treaties, two of which have several elasmobranches (sharks and rays) listed as threatened. The International Union for Conservation of Nature (IUCN) has 39 species on their red list and CITES has three listed as endangered of going extinct; the great white, the whale shark and the basking shark. Despite this, the US is reluctant to list any shark species as endangered because of the effects it may have financially on the fishing industry and the lack of funding likely to occur due to public opinion of sharks, though that opinion is changing. The confidence in the laws created, like the Shark Finning Prohibition Act of 2000 that ban shark finning and the import/export of shark, and those that limit shark catches, don't adequately account for or protect the millions of sharks killed each year as by-catch in the longline fishing industry.

   However, some encouraging signs by individual states have shown support for marine biodiversity. California's recent steps to integrate and connect Marine Protected Areas (MPA) and the listing of Great White Sharks under the protection of California’s Endangered Species Act is one encouraging sign. As of March 25, 2013 Maryland followed what California, Hawaii, Oregon and Washington, as well as Illinois, have already done and passed measures restricting the shark fin business.Where the federal government has shown a lack of commitment to protecting marine environments the states have stood up and created local laws that are doing just that. 

Magnuson-Stevens Fishery Conservation and Management Act (MSA)
 
     The Magnuson-Stevens Fishery Conservation and Management Act, or more commonly known as the Magnuson-Stevens Act (MSA), was signed in 1967, reauthorzed in 2006, governs fish populations within the United States Exclusive Economic Zone (EEZ); 3-200 miles offshore (MSA). In the framework of the Act, foreign fishing vessels are required to apply for permits to fish within US water. Furthermore, the eight regions Fisheries Management Council was created and provides guidelines in managing the fisheries. The Fisheries Management Councils being New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, North Pacific, and the Western Pacific. The regional Fishery Management Councils develop Fishery Management Plans (FMPs) for every fishery within their geographic region (MSA). The councils, which are required to seek broad public input from individuals with local knowledge and interest in the fisheries, are unique in the federal regulatory system (Matulich, et al. 2007).
 
     Councils develop FMPs that propose and implement regulations for a particular fishery which are to serve as the foundation for legal guidelines under the MSA. However, under the authority of NOAA, NMFS ultimately dictates the management measures and regulations. Despite the fact that NMFS cannot revise a council-submitted FMP amendment, or proposed regulation to suit its own policy preferences, or to write regulations that undercut council policy intent, except when they conflict with other applicable laws (Matulich, et al. 2007), a unanimous approval of a Bering Sea and Aleutian Islands (BSAI) crab rationalization program by the North Pacific Fishery Management Council (North Pacific Council) (Matulich, et al. 2007) failed in 2007, even after Congress instructed them to take it up. By overstepping its authority, NMFS defeats the spirit of the Act's value of forming policy from “local stakeholders and experts familiar with unique fishery circumstances” (Matulich, et al. 2007) and increases litigation against it. As of 2011 Amendment 34 and 37 changed that and the BSAI now has their crab rationalization program.
 
     In 1996 the MSA authorized and enacted the Sustainable Fisheries Act which initiated new mandates that require biological observers on board vessels, reduce amounts of bycatch, and reduce amounts of overfishing. As of 2006, the reauthorization of the MSA protects deep sea coral habitats, calls for the improvement in data collection for both recreational and commercial fisheries (Oceana), and the end to overfishing of all U.S. fish populations by 2010. In an effort to reach that goal NOAA has moved toward catch share schemes. (Dayton, et al. 2002)

     Catch sharing, which is a relatively new and promising approach to managing commercial fisheries, reduces wasteful fishing practices, improves fishing safety, and increases profits by giving fishermen a stake in fisheries and thus an incentive to conserve them. Also known as individual fishing quotas (IFQ), individual transferable quotas (ITQ), and territorial use rights in fishing; these programs have been used worldwide for over 30 years. Their key feature is that fishermen (individually or in cooperatives) are assigned either a percentage share of the total allowable catch or of fishing concessions in a given bay, bank, reef, or other ocean area (a system referred to as "territorial use rights for fishing") (Festa, et al. 2008). Catch Shares are not without their problems as they have been hard to establish for recreational fishing that can often equal or surpass the tonnage of fish caught by commercial fishing vessels.

     Given that the word biodiversity is an Americanism, according to Dictionary.com, it's surprising to see how little the word is used in our legislation with regard to its protection. In fact, it's not in any of the three Acts discussed above. Despite this fact the recent trend to gear legislation to protect it is there. 'In September 2013 the Magnuson-Stevens Fishery Conservation and Management Act, which regulates America’s fisheries, will be up for reauthorization for the first time since it was previously amended in 2006' (Conathon, M. 2013). Perhaps we will see that changed with it's reauthorization.
 
     Protecting biodiversity of the ocean is more than the protection of a charismatic species or the regulation of fishing, although that's part of it. The issues of pollution, climate change and invasive species are of equal concern and influence on the health of the marine ecosystems, yet little legal protection is addressed or given in this regard. The ESA comes closest in that it has a legal obligation to protect the ecosystem with which an endangered species lives, as in the case of the resident Killer Whale (Orcinus orca) population on the North West Coast of North America that was placed on the endangered species list in 2005, followed by NMFS designated critical habitat in November 2006. Designating the population as endangered under the ESA will help to alleviate human-caused threats that have reduced the population to as few as 78 whales. The main threats to killer whales are toxic chemicals such as PCBs, declining salmon stocks, and considerable boat traffic in their home range. This might also have an added benefit to the humans living near this community as the accumulated toxins in the predatory fish are of concern to the health of the general public who consume it.
 
     The complicated, politically-charged, and often costly task of protecting biodiversity of the ocean is an incredibly daunting task. This might explain the reluctance to list any fish as an endangered species. “The role of science should be to address these broader ecosystem effects and the interaction of fishing with other stressors in order to advance ocean management.” (Dayton, et al. 2002) As Boris Worms states “it is appropriate and necessary to attempt restoration on a global scale, and provide a benchmark against which community recovery could be assessed.” (Worm, B. 2003) Data suggests that protected species generally respond positively to proactive conservation management [and] is reason for optimism for the future of biodiversity‟ (Schwartz, 2008) and that at this point, these [negative] trends are still reversible" (Worm, B. 2006).

Resources/Links/Ideas/Ect: Green Facts: How much fish is consumed worldwide?, US states and Shark Finning News, The Dollars and Science of Fishery Management, Ecological Intelligence 

"The conservation of animals and plants is more important to human beings that we are to them. These forms of life are vital for our survival." - Laurnes vander Post 1982 lecture at University of Cape Town

“Inadequate funding for science makes poor management a self-fulfilling prophecy.”

 - Rep. Ed Markey (D-MA) 2013 at the House Committee on Natural Resources this month.

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