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Strengthening Government Regulation to Save Marine Fisheries Nicola Kieves

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Strengthening Government Regulation to Save Marine Fisheries Nicola Kieves University of Minnesota Law School Scholarship Repository Minnesota Law Review 2005 Crisis at Sea: Strengthening Government Regulation to Save Marine Fisheries Nicola Kieves Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Kieves, Nicola, "Crisis at Sea: Strengthening Government Regulation to Save Marine Fisheries" (2005). Minnesota Law Review. 699. https://scholarship.law.umn.edu/mlr/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Note Crisis at Sea: Strengthening Government Regulation To Save Marine Fisheries Nicola Kieves * Around the world the health of marine fisheries continues to deteriorate.' In American waters, overfishing occurs in more than half of all fisheries. 2 Because they are an open-access re- source "owned by all and owned by none," 3 in the absence of some restrictions, fisheries are likely to be harvested until deci- mated. 4 Countries continue to close their most profitable fisher- ies,5 threatening society's health and economic welfare. 6 Socially, overfishing leads to longer working hours, lower wages, and increased rates of unemployment for fishermen. 7 * J.D. Candidate 2006, University of Minnesota Law School; B.A. 2002, Middlebury College. Thank you to Jana Bruder and Ryan Stai for their com- ments and encouragement throughout the editorial process and to Professor Jim Chen for his advice and guidance. This Article is dedicated to my family for their unwavering support these past months and all my life. 1. Jonathan H. Adler, Legal Obstacles to Private Ordering in Marine Fisheries,8 ROGER WILLIAMS U. L. REV. 9, 9 (2002). 2. JOSH EAGLE ET AL., TAKING STOCK OF THE REGIONAL FISHERY MANAGEMENT COUNCILS 1 (2003). The Code of Federal Regulations defines "overfishing" as "whenever a stock or stock complex is subjected to a rate or level of fishing mortality that jeopardizes the capacity of a stock or stock com- plex to produce [maximum sustainable yield] on a continuing basis." 50 C.F.R. § 600.310(d)(1)(ii) (2004). 3. Christopher J. Carr, Recent Developments in Compliance and En- forcement for InternationalFisheries, 24 ECOLOGY L.Q. 847, 848 (1997). 4. See Adler, supra note 1, at 12. 5. Christopher J. Carr & Harry N. Scheiber, Dealing with a Resource Crisis: Regulatory Regimes for Managing the World's Marine Fisheries, 21 STAN. ENVTL. L.J. 45, 45-46 (2002). 6. See ORG. FOR ECON. CO-OPERATION & DEv., STUDY "TOWARDS SUSTAINABLE FISHERIES-ECONOMIC ASPECTS OF THE MANAGEMENT OF LIVING MARINE RESOURCES," ("Fisheries are an important contributor to food security and general economic activity, including employment and trade."), at http://www.oecd.org/document/62/0,2340,en_2649_33901_2508478 1_1 1_1,00. html (Oct. 1996) [hereinafter TOWARDS SUSTAINABLE FISHERIES]. 7. Oran R. Young, The Political Economy of Fish: The Fishery Conserva- tion Act of 1976, 10 OCEAN DEV. & INT'L L.J. 199, 201 (1981); see MARK 1876 2005] CRISIS AT SEA 1877 Meanwhile, the economic impact of fisheries is substantial. Capture fisheries and aquaculture provided greater than 15% of the world's total animal protein supply in 2000.8 Trade in fish products totaled $55.2 billion globally, employing 35 mil- lion people. 9 In the United States, the commercial fishing in- dustry generates $25 billion annually.' 0 The recreational fish- ing industry is even larger. 1 Beyond economic and social harms to society, the loss of fisheries is a serious biological and ecological concern. Scien- the fundamental shifts tists are just beginning to understand 12 that the harvesting of species lead to within an ecosystem. Fishing causes immediate ecological damage by degrading and altering habitat.13 More importantly, large-scale, long-term commercial fishing appears to shift species makeup within eco- systems from a balanced structure to a composition that is less productive.' 4 The value of healthy marine fisheries is high. They provide food to cultures around the globe, playing a vital role in many economies. Additionally, the link between fisheries' health and the stability of marine ecosystems is becoming clear. What is not clear is how to best manage these resources. In the United States, marine fisheries management is governed by legislation enacted in 1976 designed to, in large part, give U.S. vessels a large share of the nation's fisheries industry.' 5 The Magnuson- KuRLANSKY, COD-A BIOGRAPHY OF THE FISH THAT CHANGED THE WORLD 4 (1997). 8. FOOD & AGRIc. ORG. OF THE UNITED NATIONS, THE STATE OF WORLD FISHERIES AND AQUACULTURE: PART 1: WORLD REVIEW OF FISHERIES AND AQUACULTURE 3 (2002), available at http://www.fao.org/docrep/OO5/y7300e/ y7300e00.htm. 9. Id. Sixty-five percent of those employed in the global fish trade worked in marine capture fisheries. Id. 10. EAGLE ET AL., supra note 2, at 4-5. 11. Id. at 5. 12. Tony J. Pitcher & Daniel Pauly, Rebuilding Ecosystems, Not Sustain- ability, as the ProperGoal of Fishery Management, in REINVENTING FISHERIES MANAGEMENT, 311, 313 (Tony J. Pitcher et al. eds., 1998). 13. Id. 14. See id. at 313-14. 15. Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (2000); see EAGLE ET AL., supra note 2, at 10; Warren G. Magnuson, The Fishery Conservation and Management Act of 1976: First Step Toward Improved Management of Marine Fisheries, 52 WASH. L. REV. 427 passim (1977) (discussing significant elements of the bill focusing on foreign policy). 1878 MINNESOTA LAW REVIEW [89:1876 Stevens Fishery Conservation and Management Act (FCMA)16 attempts to regulate access to a common property resource without creating any per se private property rights in fish or fish stocks. 17 Government agencies and regulations have man- aged this common resource since enactment of the FCMA. Despite its intentions, regulation under the FCMA has not led to universally healthy or sustainable marine fisheries.' 8 Problems persist despite the billions of federal dollars spent on fishery science and improved laws. 19 In an effort to better achieve sustainable development of fish stocks, the proposed Fisheries Science and Management Enhancement Act of 2005 (Enhancement Act) aims to amend the FCMA, and address some of the FMCA's most obvious shortcomings. 20 In the face of evidence that government regulation leads to poorly managed fisheries, some suggest that privatization of fishery resources would result in healthier fish stocks. 21 Sup- porters of privatization advocate for private property rights reasoning that market forces will drive industry participants to protect the resources on which they rely.22 16. 16 U.S.C. §§ 1801-1883 (2000). The FCMA was reauthorized in 1996 by the Sustainable Fisheries Act. Sustainable Fisheries Act, Pub. L. No. 104- 297, 110 Stat. 3559; see OFFICE OF SUSTAINABLE FISHERIES, U.S. DEP'T OF COMMERCE, TOWARD REBUILDING AMERICA'S MARINE FISHERIES: ANNUAL REPORT TO CONGRESS ON THE STATUS OF U.S. FISHERIES-2001, at 1 (2001), available at http://www.nmfs.noaa.gov/sfa/reports.html. 17. Young, supra note 7, at 203. 18. See Adler, supra note 1, at 10. 19. See EAGLE ET AL., supra note 2, at 4. 20. Fisheries Science and Management Enhancement Act of 2005, H.R. 1431, 109th Cong. (2005). In this Note, "sustainable development" refers to "a concept that includes resource conservation as well as the maintenance of the fishing industry and its production." Carr & Scheiber, supra note 5, at 50 n. 16. 21. See Jonathan H. Adler, Conservation Through Collusion: Antitrust as an Obstacle to Marine Resource Conservation, 61 WASH. & LEE L. REV. 3 (2004); Adler, supra note 1, at 11-12; Alison Rieser, Property Rights and Eco- system Management in U.S. Fisheries: Contracting for the Commons?, 24 ECOLOGY L.Q. 813 (1997); Donald R. Leal, Community-Run Fisheries:Avoid- ing the 'Tragedy of the Commons,' in PS-7 PERC POLICY SERIES (Jane S. Shaw ed., Sept. 1996), available at http://www.perc.org/publications/policyseries/ community-full.php (promoting the use of common property rights in fisher- ies). See generally Daniel H. Cole, Clearing the Air: Four PropositionsAbout Property Rights and Environmental Protection, 10 DUKE ENVTL. L. & POLY F. 103 (1999) (addressing privatization issues and the environment generally). 22. Cole, supra note 21, at 118. But see Tracy Yandle, Developing a Co- management Approach in New Zealand Fisheries, in EVOLVING PROPERTY RIGHTS IN MARINE FISHERIES 213, 218 (Donald R. Leal ed., 2005). 2005] CRISIS AT SEA 1879 This Note analyzes privatization and government regula- tion as options to achieve sustainable development of the United States' marine fisheries. Privatization is examined first to demonstrate its inefficiencies, costs, and ultimate inability to lead to healthy fisheries on a national scale. 23 Turning to regu- lation as the most viable framework to manage fisheries, a cri- tique of the proposed Enhancement Act indicates that while the potential amendments are constructive and vital, new federal government regulation is necessary to sustainably manage these important resources. 24 Ultimately, fisheries are a public good belonging to all people. Strong, appropriate legislation must be enacted to ensure this resource's continued existence. I. OVERFISHING AND COMPETING INTERESTS IN MARINE FISHERIES MANAGEMENT The ultimate goal of fisheries management is to contain fishing effort at a sustainable level. 25 Overcapitalization, how- ever, often hinders this goal.26 Overcapitalization occurs in fish- eries where the volume of fishing exceeds that needed to har- vest optimal levels 27 and the value of fishing equipment and vessels exceeds any potential value of the catch. 28 Where open access to a common property exists, such overextended efforts are inevitable where each participant finds no incentive to limit 29 their harvest.
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