Chad McGuire (Corresponding author) Department of Public Policy, University of Massachusetts, Dartmouth 285 Old Westport Road, Dartmouth, Massachusetts 02747, United States Tel: 1-508-999-8520 E-mail: [email protected]

Bradley P. Harris Department of Fisheries Oceanography, School of Marine Science and Technology University of Massachusetts, Dartmouth 706 South Rodney French Blvd., New Bedford, Massachusetts 02744, United States Tel: 1-508-910-6359 E-mail: [email protected]

In response to resource over-exploitation and ecosystem degradation, United States federal fisheries policy is shifting from species-based to ecosystem-based management. In addition, the reauthorized Magnuson-Stevens Fisheries Conservation and Management Reauthorization Act of 2006 identified the following goals to be achieved by 2011: end over-fishing, create market-based incentives, strengthen enforcement mechanisms, and improve cooperative conservation efforts. We refer to these goals (including the ““status quo””) as front-ended policy objectives. Left unresolved are what we term back-ended policy and legal issues, specifically including issues involving the legal limitations that inhibit full consideration of ecosystem-based management principles through the adopting of scientific information. In this paper, we identify and examine some of these legal limitations, including the standard of review used in judicial proceedings. In addition, we also suggest some potential solutions to these major governance obstacles. We believe the ultimate value of this paper is the identification of recurring framework issues in United States fisheries management if, left unresolved, will continually limit the conservation-related goals such as those identified in the Magnuson-Stevens Fisheries Conservation and Management Reauthorization Act of 2006. As such, these legal obstacles should be a primary focus of policy makers who wish to achieve fishery conservation goals in-line with scientific research.

Keywords: Law, Policy, Fisheries Management, Ecosystem-Based Management

1. Introduction

The purpose of this paper is to identify what we term back-ended legal and policy issues of current United States fishery management, specifically management goals based in ecosystem principles. We use the term back-ended in reference to issues created by the interactions of substantive and procedural statutory requirements, social philosophies inherent in agency regulations, and the standard(s) of judicial review of agency actions. Here we identify back-ended issues resulting from application of the precautionary approach in the jurisprudential frameworks of the Magnuson-Stevens Fisheries Management Act (Magnuson-Stevens Act) and the National Environmental Policy Act (NEPA). A conceptual rendering of the issue dynamics is shown in Figure 1.

United States Federal Courts are responsible for ensuring agency compliance with statutory goals. This judicial oversight comes from the separation of powers doctrine, which emanates from the United States Constitution. Since agencies are part of the executive branch of government, their actions must derive from either direct constitutional power, or from the indirect granting of power from the legislative branch. This indirect grant of power includes a legislative delegation of authority to agencies. In summary, a legislative body, upon passing a law, can delegate the implementation of that law to an executive agency –– the so-called delegation power. However, agencies cannot go beyond the boundaries of that grant of power –– they cannot exceed the statutory power granted to them by the legislation. The judicial branch is empowered to review agency conduct to ensure the executive branch has not exceeded a statutory grant of power from the legislative branch. To place this summary in relevance, most environmental laws in the United States, including federal laws passed to regulate fishing activities, are implemented through a delegation of power to the executive branch.

Fisheries management law in the United States requires, among other things, that management decisions be based on the best available scientific evidence. Considering, for example, the limited scientific information

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available for essential fish habitat assessments, agencies are left interpreting the information they have through a veil of precaution. (Note 1) The current judicial standard of review allows for a strong deference to agency scientific interpretations. Any lack of scientific information may be creating a new view of science from a jurisprudential standpoint in which the intent of the legislative branch is being missed by the dynamic nature of the science, the existing executive agency approach to uncertainty, and the conflicting review standards set forth in applicable federal statutes. In short, to meet the current goals of federal fisheries law (end overfishing and improve conservation efforts) under existing legal frameworks, agencies must identify many decisions as being based in science, even when science might not support the decision. Most importantly, because of a deferential judicial review process of agency action, decisions that are not founded in science are being judicially determined to meet best scientific evidence standards. This is establishing precedence where executive agency acts are arguably outside legislative branch delegations, creating a powerful agency decision maker in the field of federal fisheries management.

We propose Congress either amend the standard of review available to courts when considering what constitutes best scientific evidence, or set forth a more detailed statutory definition of ““best scientific information available”” under federal fisheries law. This likely includes statutory amendments prioritizing the requirement that federal agencies re-evaluate management decisions when new or better scientific information is made available. The current path of judicially supporting agency decisions as ““science”” under the current statutory requirements, if left unresolved, will only support continued agency decision-making based on low scientific rigor, and decrease critical review of status quo designations.

The sections of this paper are separated as follows. We begin in Section 2 with the development of United States fisheries policy, identifying the change in management goal from species-based to ecosystem-based management. In Section 3 we discuss the development scheme for best scientific information available at the administrative or federal agency level. Section 4 presents some back-ended issues associated with habitat designations. Section 5 provides an overview of the judicial standard of review used to interpret agency decisions, and we discuss the potential implications for implementing scientific standards under this standard of review. Finally, in Section 6 we offer several suggestions for improving administrative decision-making within the jurisprudential context.

2. The Shift from Species-Based Management to Ecosystem-Based Management in United States Fisheries Policy

The predominant fisheries management paradigm is shifting from species-based to ecosystem-based management, including the use of geospatial management measures like Marine Protected Areas (Sissenwine & Mace 2003, NOAA 2005). This change has increased the demand for place-based knowledge of why, when and how fishery species interact with the marine environment. The impetus for this change in management direction derives primarily from amendments to federal laws that regulate fishing. For example, the 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Fisheries Management Act (Magnuson-Stevens Act) required essential fish habitat to be identified and mapped for every federally managed commercial fishery species by life stage (50 CFR §600.815(a)(1)). Further, in 2000, then President Clinton signed Exec utive order 34909 instructing federal agencies to strengthen marine resource management, protection, and conservation via science-based identification and prioritization of natural and cultural resources. This executive branch order stressed the use of science-based criteria and protocols for monitoring and evaluating marine resource protection effectiveness (Federal Register Vol. 65, No. 105, available at: More recently, there has been international movement to change from single-species to ““an ecosystem approach”” or ““ecosystem-based”” management practices.

The Magnuson-Stevens Act uses fisheries management plans to implement fisheries policy including harvest limits, essential fish habitat evaluation, geospatial fishing restrictions, and further requires that management plans be based on the best scientific information available. Additionally, each plan is considered a major federal action, triggering an additional review process under the federal law know as the National Environmental Policy Act, or NEPA for short. (Note 2) Regional Fishery Management Councils, under the oversight of the federal fisheries agency, NOAA Fisheries, generally adjust or amend management plans, triggering frequent NEPA reviews.

A large part of developing fisheries plans under the new federal law requires a detailed understanding of how fishing fits into marine ecosystems, especially the links between target fish species and their habitats. Due to the complexity of marine environments, scientific knowledge of these ecosystems remains limited (National Research Council, 2006). Indeed, few existing scientific studies have examined the marine environment at the scales necessary to adequately cover fishing ground contained in management plans (typically 1 000 –– 100 000

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km2). As such, meeting a ““scientific”” standard as required in the federal law is difficult, simply because adequate scientific studies are lacking. In the face of such limitations, the executive branch has often adopted fishery management plans that lack substantial scientific support, even though the legislative mandate under the law calls for these plans to be based in science (Mace & Gabriel 1999, Holliday & Gautam 2005). This has led, for example, to the closing of certain fisheries for less than scientific reasons, as well as the redistribution and concentration of other fisheries in open areas (Murawski et al., 2000).

3. Federal Executive Agency Development of Best Scientific Information Available

The use of science in fisheries management has evolved in the face of uncertainty, including implementation at the agency regulatory stage. Federal fisheries law first mandated the use of ““best scientific information”” by requiring that ““[c]onservation and management measures shall be based upon the best scientific information available”” (16 U.S.C §1851(a)(2)). The federal judicial branch has interpreted this federal statutory language by emphasizing the term ““available,”” stating: ““By specifying that decisions be based on the best scientific information available, the Magnuson-Stevens Act recognizes that such information may not be exactly or totally complete”” (Midwater Trawlers Coop. v. Department of Commerce, 393 F.3d 994, 1003 (9th Cir. 2004)). Moreover, these same courts have indicated a lack of scientific information does not prevent regulation, and therefore executive branch regulation in the face of scientific uncertainty has been permitted in the fisheries management laws of the legislative branch (Midwater Trawlers Coop., 393 F.3d at 1003 (emphasis in original)). This is in-line with the executive branch regulations established regarding the standard of scientific certainty required for management purposes: ““The fact that scientific information concerning a fishery is incomplete does not prevent [regulation]”” (50 CFR §600.315(b)). However, when establishing the original standards, the Senate Commerce Committee indicated the ““best scientific information available”” standard ““must be recognized as one of the most important standards”” (Senate Committee, Fishery Conservation and Management Act, 94). Thus, there is support in the Congressional record to indicate that a primary function of fisheries management is the identification and application of scientific rigor to support fishery management plans.

Thus, the standard of scientific rigor has been determined by both the judicial and executive braches of government to be directly related to the state of the science and is therefore variable. If the science is good, then a greater degree of rigor is likely required. Conversely, where the science is lacking, a lesser degree of rigor will not prevent regulation from moving forward, even when the management plan contains limits to fishing certain areas that are not based on sound scientific principles. This is profound, especially when one considers the legislative requirements in the law call for management plans to be supported by science. For example, Pikitch et al. (2004) has suggested, to be scientific, decisions implicating ecosystem-based management must ““delineate all marine habitats utilized by humans in the context of vulnerability to fishing-induced and other human impacts, identify the potential irreversibility of those impacts, and elucidate habitats critical to species for vital population processes.”” Based on Pikitch’’s definition of ecosystem-based management for fisheries, cause and effect relationships must be established between the services marine habitats provide to species and how anthropogenic activities impact those services. The implication is that management plans attempting to identify (and regulate) essential fish habitats are currently doing so without much scientific rigor. This suggests the executive branch is effectively regulating fisheries in a manner that goes against the scientific principles that have been highlighted by the legislative branch in its recent amendments to the fisheries management laws. In addition, there seems to be an acceptance by the judicial branch of this practice, as highlighted in the examples above. The result seems to be a situation where federal fisheries management is being implemented by the executive branch of government in a manner that goes beyond the power to do so granted by the legislative branch. Most importantly, the judicial branch seems unwilling to acknowledge this fact, mostly because there is limited scientific information available to make honest and accurate fisheries management decisions, at least on the larger scales identified above.

3.1 Applying Science to Identify and Protect Essential Fish Habitat

Under essential fish habitat provisions of the federal Magnuson-Stevens Act, executive branch regulation of fisheries was to expand from the traditional management of fishery harvests to a focus on fishery habitat. Specifically, Magnuson-Stevens mandated federal agencies ““
…minimize, to the extent practicable, adverse effects on habitat
…”” (16 U.S.C. §1853(a)(7)). To do this, federal regulations were to be developed to assist regional fishery councils in the description and identification of essential fish habitat in fishery management plans (16 U.S.C. §1855). Once essential habitat is identified, councils are to consider the adverse fishing impacts on the habitat, and to ensure the conservation and enhancement of such habitat. From a policy perspective, it can be assumed that identifying essential fish habitat, no matter the methodology employed, is a front-ended process that will result in labeling an area of the ocean as a place where restrictions on fishing effort are expected. It is

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generally difficult to remove a label of protection once it has been put in place, regardless of the scientific basis for the original designation. For example, the New England Fishery Management Council closed three fishing areas in 1994 (Murawski et al., 2000). Portions of these areas were reinforced as ““Habitat Closures”” in 2003 (NOAA, 2003), and this was all done based on a set of scientific assumptions that have not been revisited in over sixteen years.

The executive branch regulations define essential fish habitat as follows: ““
…those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity
necessary means the habitat required to support a sustainable fishery and the managed species’’ contribution to a healthy ecosystem”” (50 CFR §600.10). In those same regulations, Regional FisheryCouncils are required to: (1) identify essential fish habitat; and (2) minimize the adverse affects to this habitat through fishing (50 CFR §600.815). These regulatory pronouncements are highly scientific, meaning they require a strong causal connection as described by Pikitch, et al. (2004) above. However, as has been shown, both the federal regulatory bodies and the judicial system do not require a high degree of causal relation when defining ““best scientific information”” under the Magnuson-Stevens Act. Many in this field acknowledge current habitat decisions are being made with less than optimum information, and often without scientific rigor (National Research Council, 2002). While it certainly may be an acceptable policy practice to adopt precautionary measures for the protection of fishery resources, such actions are not inherently scientific, but nevertheless have strong policy and legal implications. For example, by couching such policy decisions in terms of science, we are creating a scenario where the executive branch is being allowed to act outside legislative intent, which is further being enforced by a judicial branch that defers to executive branch definitions of what is an acceptable level of scientific rigor. This is what we term back-ended issues, and is the remaining focus of this paper.

4. The Back-Ended Issues Associated with Essential Fish Habitat Designation

Laws passed by the legislative branch of government represent an official policy statement toward the subject matter of the legislation. In the context of fisheries management, the United States Congress has set a general goal of establishing sustainable fishing practices. At the heart of modern fisheries management is the reliance on science to achieve management goals. However, faced with the scientific uncertainties underlying habitat and ecosystem information, the executive branch is moving forward to implement ecosystem-based management with reduced reliance on science. This is not because the executive branch seeks to avoid good scientific information to inform decision-making. Rather, there is a current lack of scientific information in this field from which to make meaningful decisions (National Research Council, 2006). This reality favors a trend of couching decisions as scientifically based, when actual scientific support is lacking. The undoubtedly unintended back-ended result is the use of the term science to support a non-scientific decision about where to limit fishing. Limited judicial review focused on the quality of the science reinforces this process, while ““forcing”” mechanisms under certain federal laws such as NEPA create incentives to move forward in designations and management without the benefit of scientific analysis. The two forces then, limited judicial review and ““procedural forcing”” mechanisms under NEPA, may be seen as drivers reinforcing management decisions without sound science.

4.1 How “Best Scientific Evidence” is Being Interpreted by Agencies

A review of the summative literature suggests the executive branch agency responsible for implementing federal fisheries law, NOAA Fisheries, is generally underfunded and understaffed, and therefore unable to properly implement the rigorous details of ecosystem-based analysis (National Research Council, 2002, pgs. 34-35). Complicating NOAA Fisheries responsibilities is the fact that while the federal fisheries law provides specific guidelines for the development of fishery management plans, no guidelines exist for the evaluation of how aspects of such management plans, including the choosing of essential habitat, are made. The result is federal agencies creating rules that interpret best scientific information available to be the level of science currently available, regardless of its rigor, limiting the importance of science as a primary factor in establishing habitat and ecosystem boundaries (National Research Council, 2004).

A primary example of how information has been misused can be found in recent habitat designations. As mentioned above, following the legislative branch amendments to the federal fisheries laws in 1996 and 2006, the emphasis has changed from species-based to ecosystem-based management techniques. The old science used under the species-based management method was primarily stock assessments. The foundational data for these assessments included notations of where a particular species of fish was found in previous years based on annual federal agency surveys. When the management focus incorporated habitat considerations, the main scientific information available only provided information on where species were found, not necessarily the essential

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habitat for that species. (Note 3) Reliance on stock assessment data (where numbers of fish are found) as a proxy for identifying essential fish habitat (what areas are most important for the survival of that fish species) has resulted in regional councils identifying almost the entire area within their jurisdictions as essential habitat, which followed federal executive branch guidelines (for interactive EFH maps see

This massive designation has caused two back-ended issues. First, these areas have now presumptively been determined to contain essential fish habitat. This means wide swaths of potentially valuable fishing ground are protected under this presumption. Most importantly, the designations are presumed to be based on science, even where the science being employed is entirely unrelated to the protections being created. In the American legal system, it will be difficult to overcome this presumption.

Second, the judicial branch, through legal opinions, has supported these designations as being within the bounds of executive branch discretion, based on legislative intent. The effect of this support suggests that when the executive branch attaches scientific meaning to essential habitat designations, a potentially arbitrary designation becomes veiled as science. Thus, the level of scientific rigor required to support agency decisions has been reduced. With judicial approval of such actions, it can be argued true science is being de-emphasized from the process of habitat designation. Without a strong political will, it is plausible to assume increased scientific rigor will not be a top priority, especially where funding, expertise, and the reality of the kind of science required (data intensive with significant analysis) all suggest a lower likelihood of increasing the state of scientific knowledge and increasing reliance on the social philosophy of precaution.

Regional fishery councils are instructed to examine all available information including peer-reviewed literature, unpublished scientific reports, data files of government resource agencies, fisheries landing reports, and other sources of information, and the consider the information according to its scientific rigor (50 CFR §600.815(a)(1)(ii)(B)). This process is supposed to ensure the best scientific information available was used in the decision-making process. However, as was indicated above, the available information is rarely conclusive from a scientific standpoint. How then are Councils supposed to prioritize this information? Do they grant greater weight to NOAA Fisheries analysis? Do Council technical teams do their own ““science””? Or, do they simply conduct an information gathering exercise to satisfy the administrative requirements of NEPA? If the answer even hints towards a tendency to simply gather information (as a proxy for scientific analysis), then we must ask the influence of goal-orientated motivations in the rulemaking process. More importantly, we may see a trend being established where agencies are substituting data accumulation for the legislative branch mandate requiring best available science. Assuming the judicial branch grants deference to such actions, an important lesson is learned: when implementing data-intensive and difficult scientific principles involving ecosystem interactions, the simple accumulation of data, with little actual analysis, can substitute for scientific rigor. The implication is the goal of science informing policy has been abandoned, and instead the collection of information becomes the main function of the decision-making process.

This back-ended issue may be occurring for a variety of practical and politically motivated reasons that are specific to each regional council and NOAA Fisheries regional office or science center. However, the judicial approval of such practices is one check-and-balance that seems to be failing the original intent set by Congress. Moreover, we see conflicting federal standards of review under fisheries laws and NEPA that may incentivize the collection of data over the analysis of that data. If this is true, it brings forth probably the most significant back-ended issue for consideration: an emphasis on complying with federal procedural statutes to defend against judicial challenges taking precedence over the selection of the best information based on its scientific rigor. To develop the rationale for this possibility, we examine the judicial standard of review that is generally applied to fisheries management EFH decisions. The purpose is to identify how the various statutes being applied to fisheries, with their different standards of review, might be impeding the development of ecosystem science.

5. The Judicial Standard of Review

5.1 Presumptions of Judicial Decision-making

We begin with the premise that executive branch agencies are making geospatial designations using information with insufficient scientific rigor to fully inform their decisions. We further presume the intent of legislative branch, especially in recent federal fishery management laws, are to be informed by science. (Note 4) From these presumptions, we now look at the manner in which the judicial branch has interpreted agency designations of essential fish habitat. When looking at these cases, we want to distinguish judicial review under Magnuson-Stevens Act standards, and judicial review under NEPA standards. In general, we believe courts are deferential to the executive branch when reviewing management approaches under Magnuson-Stevens Act

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(which requires a science-based approach), but are more critical of such decisions under NEPA (which requires certain procedures are followed to ensure the protection of the environment –– see Figure 1 and Note 2). Most importantly, the ““critical”” judicial review under NEPA is focused on ensuring the agency has engaged in a ““hard look”” at all available information. We believe this standard creates incentives for the executive branch to initially over-designate essential fish habitat under Magnuson-Stevens, but at the same time discourages the executive branch from changing these designations should better scientific information become available.

5.2 The Doctrine of Deference in Judicial Review

Historically, courts have appeared unwilling to delve into the details of fisheries management, including determining whether or not the best available science is being applied to support a given management decision (Greenberg, 1993). This unwillingness is generally referred to as the Doctrine of Deference (Coggins, 1998). It is a legal doctrine derived from the field of Administrative Law, and codified under the Administrative Procedures Act (APA). Under the APA, a court will uphold an agency’’s decision unless the agency is found to have acted arbitrarily, capriciously, with an abuse of discretion, ““or otherwise not in accordance with law”” (5 USC §706(2)(A)).

The judicial interpretation of the Doctrine of Deference has been defined most recently by the U.S. Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, the judicial branch is limited in its review of an executive branch interpretation of a legislative branch statute that the executive administers. The Court in Chevron articulated a two-step process in identifying the limitation on judicial review. Under the first step, the reviewing court ““must first exhaust the ‘‘traditional tools of statutory construction’’ to determine whether Congress has spoken to the precise question at issue”” (Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995), quoting Chevron, 467 U.S. at 843, n. 9, 104 S.Ct. 2778). If the statute is silent or ambiguous on the issue, then Congress is deemed to have not spoken directly, and a permissible agency interpretation of the statute merits judicial deference. Under step-two considerations, courts will generally defer to an agency’’s interpretation if the interpretation is reasonable and consistent with the