U.S. Fishery Policy and Law Augsburg 2008

U.S. Fishery Policy and Law---Augsburg 2008 Professor Joseph J. Kalo Graham Kenan Professor of Law University of North Carolina School of Law

This course is an in-depth analysis of the guiding policies, applicable laws, and governing regulations relating to the management of commercial and recreational fishing activities conducted in the U.S. Exclusive Economic zone and U.S. coastal waters. The materials for the course include selected provisions of the Magnson-Stevens Fishery Conservation and Management Act—the principle federal fisheries management legislation, selected materials from Kalo et. al. Coastal and Ocean Law (2007 3rd edition), portions of the reports of the 2003 Pew Oceans Commission and the 2004 U.S. Commission on Ocean Policy, and other related policy materials.

The course will begin with a general discussion of why societies make disastrous decisions; an explanation of the differences between U.S. domestic law’s and International Law’s classification of the zones of ocean waters; and an examination of the allocation of authority over ocean waters between the federal government and individual coastal states. Then we take a brief look at the nature and scope of the problems plaguing U.S. and world fisheries and the basic, available fishery management tools. With this background established, the course will proceed to its examination of the specific policies and laws that shape current U.S. fishery management.

U.S. EEZ fisheries are managed by regional fishery management councils, the members of which consist of federal and state government officials and private citizens, most of whom are representatives of some component of the fishing industry. The strengths and weakness of this form of governance will be discussed and the process by which fishery management plans are formulated and implemented will be examined. Of special interest will be the institution of limited access privilege programs which give qualifying individual fishermen a quasi-property right to harvest a set percentage of the allowable harvest in a particular fishery. The course will conclude with a look at the Atlantic States Marine Fisheries Commission and its success in managing fisheries within its jurisdiction. If time permits, there will also be some discussion of open ocean aquaculture and the role of the federal Coastal Zone Management Act consistency requirement in allowing coastal states to have a voice in federal decisions relating to activities in waters under federal control. There will be an examination given on the day of the last class meeting.

Topics and Readings for Class Meetings

Class #1 First hour: Bad Policy Choices/ Authority Over Fisheries and other Ocean Resources 1. Introduction 2. Why Societies make disastrous decisions Read: “Why Do Societies Make Disastrous Decisions” 3. Authority over Ocean and Coastal Water Resources International, US Federal and State Law Show PowerPoint presentation Recommended Reading: Chapter Five pp. 369-409, 419- 422 Second Hour: Status of the World’s Fisheries Empty Oceans/Empty Nets (video) Third Hour: The Why of Troubled Fisheries Read Fisheries 2008 Questions Think about the following questions. How are our fisheries doing? What is the baseline problem? Why should we care about declining fisheries? How do the reasons for caring affect fishery management policies? Why is fisheries management such a difficult business?

Class #2 First Hour: Goals of Fishery Management/ Tools of Fishery Managment Read PEW report 35-49 Read US Oceans Commission report 283-303 Read Chapter Seven 513-525, 535-540 Read Magnuson Stevens Fishery Conservation and Management Act (MSFCMA) Sections 2, 3, 301, 302, and 304 (e) and (h) Second Hour: Who Manages the Fisheries; Stock Assessments Read Chapter Seven 525-535 Read Taking Stock 12-45 Read PEW Commission 44-49 Read US Ocean Commission report 274-283

Class #3 First Hour: National Standards; Preventing Overfishing: Rebuilding Depleted Fish Stocks Read Chapter Seven 523-526, 531, 535-540, 546-549 Read National Standard 1 Guidelines Read National Standard 1 Handout Second Hour: Bycatch and Essential Fish Habitat Read Chapter Seven pp. 560-583 Read National Standard #9--bycatch Read also Section 303(a)(11) of the MSFCMA--[16 USC 1853(A) (1)] Read Sec. 305(b) of the MSFCMA [16 USC 1855(b)] fish habitat Reread US Oceans Commission report 279-299 Read PEW report 41-44 Class #4: First Hour: Ecosystem Management Video of 2006 Ocean Conference presentations Read Ecosystem Management Consensus Statement Reread US Oceans Commission 295-297 Second Hour: Who Gets the Fish? Allocation of Fishing Privileges/ Privatization Read Chapter Seven pp. 583, 595-615 Read the following sections of the MSFCMA Sec. 303(b)(6)[16 USC 1853(b)(6)] Sec. 303A [16 USC 1853a] Sec. 407(b) and (c) [16 USC 1883(b) and (c)] Reread US Ocean Commission 287-291 Third Hour: Judicial Review, Enforcement, State Authority, Interstate Commissions (time permitting) Read Sec. 305(f) judicial review Read also the following material Atlantic States Fisheries Cooperative Management Act Reread US Ocean Commission report 291-295

Class #5 First Hour: Open Ocean Aquaculture I Coastal Zone Management Act of 1972 The Consistency Requirement of the CZMA Read Chapter Three 221-227, 237 (note 7)-240 and 243- 259 Be prepared to discuss the Problems One and Two on pp. 254-257 Second Hour: Open Ocean Aquaculture II Read PEW Commission--73-80 Read US Ocean Commission 330-336 National Offshore Aquaculture Act of 2007 [edited] as introduced

Class #6 Examination (syllabus revised June 18, 2008)