Protecting Coral Reefs - SSRN papers

CORAL REEFS, FISHING, AND TOURISM: TENSIONS IN U.S. OCEAN LAW AND POLICY REFORM by Robin Kundis Craig∗

ABSTRACT In the United States, seven states and territorial jurisdictions have coral reefs: Hawaii, Florida, Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. Reef-based coastal tourism and recreation provide significant economic benefits to the United States – benefits that generally exceed those of reef-based commercial fisheries. The coral reef tourism industry requires healthy coral reef ecosystems, and reefs worldwide are in serious trouble. While U.S. coral reefs are subject to a number of anthropogenic stressors, fishing is the one that simultaneously (1) is generally deemed the most damaging to coral reef ecosystems and the biodiversity that makes such reefs attractive to tourists; and (2) has created the most political and legal opposition to coral reef protection. However, a potential win-win solution exists: both scientists and policymakers have recommended the increased use of marine protected areas (MPAs) and marine reserves to protect coral reef ecosystems and their tourism services, a solution that could simultaneously improve reef-based fisheries. Increased use of MPAs and marine reserves requires a legal basis for setting aside areas of the ocean and restricting fishing therein, preferably with some sort of policy priority for protecting marine biodiversity. U.S. law and policy provides a number of legal mechanisms for creating MPAs but creates no clear policy in favor of coral reef – or marine biodiversity more generally – preservation and protection. As a result, conflicts between fishing interests, on the one hand, and tourism and scientific interests, on the other, have stalled coral reef-based MPA designations at the federal level. Nevertheless, despite a de facto legal preference for fishing, a tension between fishing promotion and coral reef ecosystem protection has been emerging in U.S. law and policy, indicating that modification of U.S. federal law is necessary to promote coral reef ecosystem preservation and restoration. This article explores developments in U.S. law and policy in the 21st century regarding coral reef protection in light of those ecosystems’ acknowledged tourism value. It concludes that the structure and procedures of the National Marine Sanctuary Act have proven ineffective in protecting U.S. coral reefs for purposes of promoting and sustaining coral reef tourism and suggests improvements for future coral reef and MPA policy. ∗

Attorneys’ Title Insurance Professor of Law, Florida State University College of Law, Tallahassee, FL. I first presented this paper at the Fifth International Coastal & Marine Tourism Congress, held September 11-14, 2007, in Auckland, New Zealand. I also gratefully acknowledge the Florida State University College of Law’s financial support for both this paper and my participation in that Congress. Comments may be directed to the author at [email protected].

Craig – Protecting Coral Reefs – 1

INTRODUCTION Oceans provide significant economic benefits to the United States that have been increasing over time. “In 1972, with the GNP of the United States some $1117.1 billion, the aggregated value of the ocean sector was $30.6 billion.”1 By “2000, the ocean economy contributed more than $117 billion to American prosperity and supported well over two million jobs.” 2 Coastal tourism and recreation are a significant component of this value. In 2000, “[r]oughly three-quarters of the jobs and half the economic value were produced by oceanrelated tourism and recreation . . . .”3 Indeed, the employment and economic values for ocean tourism and recreation exceed those for agriculture.4 Such economics should be relevant to U.S. ocean law and policy, as the two ocean commissions that recently reviewed such laws and policies acknowledged. In 2003, for example, the Pew Oceans Commission observed that “[c]oastal tourism and recreation account for 85 percent of all tourism revenue, which is the second largest contributor to the U.S. gross domestic product.”5 Indeed, “[i]n California alone, coastal tourism is valued at nearly 10 billion dollars annually, far exceeding the 6 billion dollars generated by port traffic and dwarfing the 550 million dollars generated by the state’s fisheries and mariculture, or saltwater aquaculture . . . .”6 The following year, the U.S. Commission on Ocean Policy concurred, emphasizing that “[t]ourism and recreation was the largest sector in the ocean economy, providing approximately 1.6 million jobs” and slightly less than $60 billion in Gross Domestic Product.7 The U.S. Commission also noted that: Tourism and recreation constitute by far the fastest growing section of the ocean economy . . ., extending virtually everywhere along the coasts of the continental United States, southeast Alaska, Hawaii, and our island territories and commonwealths. This rapid growth will surely continue as incomes rise, more Americans retire, and leisure time expands.8

1

Giulio Pontecorvo, et al., Contribution of the Ocean Sector to the United States Economy, 208 SCIENCE 1000, 1000 (May 30, 1980). 2 U.S. COMMISSION ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST CENTURY 31 (Sept. 2004) [hereinafter USCOP REPORT]. 3 Id, 4 The Commission noted that “ocean-related employment was almost 1 ½ times larger than agricultural employment in 2000, and total economic output was 2 ½ times larger than that of the farm sector.” Id. Because tourism and industry provides three-quarters of the ocean-related jobs, that sector supplied about 1.125 times the number of agricultural jobs. Moreover, because ocean-related tourism and recreation supplied half of the ocean’s GDP value, its total economic output was about 1.125 times the economic output of agriculture. 5 PEW OCEANS COMMISSION, AMERICA’S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE: A REPORT TO THE NATION 49 (May 2003) [hereinafter POC REPORT]. 6 Id. at 49, 51 (citation omitted). 7 USCOP REPORT, supra note 2, at 31, fig. 1.1. 8 Id. at 35.


In contrast, commercial and ornamental fishing combined are worth $31 billion to the United States each year9 – a significant number, to be sure, but still only about half the value of tourism and recreation. Of course, legal and policy response to the value of tourism and recreation are complicated by the fact that recreational fishing accounts for $20 billion in annual economic value,10 some of which bleeds into general tourism revenues such as hotel stays and tourismbased restaurant trade. Thus, not all tourism value can be attributed to non-extractive tourism uses such as diving. Instead, as the Pew Oceans Commission observed, Fishing-related activities grease the engine of coastal tourism. Recent estimates indicate more than 17 million marine recreational fishers spend approximately 25 billion dollars per year on fishing-related activities and products . . . . Recreational fishing is important to the economies of California and the South Atlantic and Gulf Coast regions, particularly Florida.11 Moreover, as the U.S. Commission noted, evaluating the role of recreational fishing in ocean stewardship generally is complicated: the National Marine Fisheries Service’s Ethical Angler program promotes a voluntary stewardship code and catch-and-release programs, but “saltwater anglers can contribute significantly to the overall mortality of certain stocks.”12 Nevertheless, even if recreational fishing is sequestered into its own category, nonextractive ocean-related tourism and recreation still provide approximately $38.5 billion in annual economic value. Thus, the overall point remains valid: in terms of sheer economic value, tourism and non-fishing recreation interests deserve consideration in the setting of U.S. ocean law and policy at least equal to that of the commercial and recreational fishing industries. The point becomes even more acute when the focus narrows to the United States’ coral reef ecosystems. Coral reefs are some of the most valuable ecosystems on the planet, “provid[ing] ecosystem goods and services worth more than $375 billion to the global economy each year.”13 Many of these benefits derive from tourism.14 In the United States, and not including the Northwestern Hawaiian Islands, there are about 7607 square miles of coral reefs off the coasts of Hawaii, Florida, Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana

9

Id. at 31-32. Id. at 275. 11 POC REPORT, supra note 5, at 35. 12 USCOP REPORT, supra note 2. at 281. 13 J.M. Pandolfi, et al., Are U.S. Coral Reefs on the Slippery Slope to Slime?, 307 SCIENCE 1725, 1725 (March 18, 2005); see also USCOP REPORT, supra note 2, at 321; CORAL REEF TASK FORCE, THE NATIONAL ACTION PLAN TO CONSERVE CORAL REEFS 1 (March 2, 2000) [hereinafter 2000 CORAL NATIONAL ACTION PLAN]. 14 Richard Stone, A World Without Corals?, 316 SCIENCE 678, 678, 680 (May 4, 2007). 10


Islands.15 Over 90 percent of these reefs are found in the United States’ Western Pacific holdings,16 but most tourism occurs in Hawaii, Florida, and the U.S. Virgin Islands. These reefs provide great tourism value. “U.S. reefs are a major destination for snorkelers, scuba divers, recreational fishers, boaters, and sun seekers. Diving tours, fishing trips, hotels, restaurants, and other businesses based near reefs provide millions of jobs and support many regional economies in the U.S., contributing billions of dollars in tourism-dependent revenue annually.”17 In 2002, the National Oceanic and Atmospheric Administration (NOAA) “calculated that annually 45 million visitors come to seaside and live-aboard accommodations to dive, fish, and otherwise enjoy U.S. coral reefs,” generating “an estimated $17.5 billion annually in local income and sales for U.S. States, Commonwealths, and Territories. An additional 113,000 tourists visit the Freely Associated States, spending over $84.8 million annually.”18 In addition, “[r]ecent data show over 90 million U.S. residents age 16 or older frequent coral reefs for some form of recreation.”19 In 2007, NOAA more specifically reported over $300 million in annual tourism-related economic benefit in the Main Hawaiian Islands20 and “$4.4 billion in local sales, almost $2 billion in local income, and 71,300 full- and part-time jobs” in southern Florida.21 Even in American Samoa, where tourism is limited, coral reefs provide approximately $5 million in annual economic value.22 Of course, coral reefs are also critical to U.S. fishing interests. “Over 50% of all federally managed fisheries depend on coral reefs for part of their life cycle.”23 Nevertheless, compared to coral reef tourism, coral reef-related fishing provides less economic value to the United States by an order of magnitude, generating income and other benefits in the hundreds of millions of dollars instead of, for coral reef tourism, the billions. For example, in 2000, “[t]he 15

D.D. TURGEON, ET AL., NOAA, THE STATE OF CORAL REEF ECOSYSTEMS OF THE UNITED STATES AND PACIFIC FREELY ASSOCIATED STATES 1 (July 2002). See also 2000 CORAL NATIONAL ACTION PLAN, supra note 13, at 1 (estimating the total, exclusive of the Northwestern Hawaiian Islands, to be 17,000 square kilometers). 16 2000 CORAL NATIONAL ACTION PLAN, supra note 13, at 1. 17 Id. at 2. 18 TURGEON, supra note 15, at 4. 19 Id. at 35 (citations omitted). 20 PUGLISE, K.A., & R. KELTY, EDS., NOAA, NOAA CORAL REEF ECOSYSTEM RESEARCH PLAN FOR FISCAL YEARS 2007 TO 2011, at 1 (Jan. 2007) [hereinafter 2007 CORAL RESEARCH PLAN]. The U.S. Commission on Ocean Policy offered a slightly higher value for Hawaii’s coral reefs, noting that “in Hawaii, coral reefs are a major source of recreational benefits, generating an estimated $360 million per year.” USCOP REPORT, supra note 2, at 35. See also H.P. CESAR, ET AL., ECONOMIC VALUATION OF THE CORAL REEFS OF HAWAII: FINAL REPORT (FY 2001-2002) (2002) (calculating the $360 million per year figure). 21 2007 CORAL RESEARCH PLAN, supra note 20, at 1. Data for Florida vary considerably, however. For example, the U.S. Commission on Ocean Policy reported in 2004 that “[i]n 2001, coral reefs in the Florida Keys alone supported $105 million in income and more than 8,000 jobs.” USCOP REPORT, supra note 2, at 321-22. In contrast, in 2005, Pandolfi et. al reported in Science, relying on 1998 calculations, that “[a]nnual revenues from reef tourism are $1.6 billion, but the economic future of the Keys is gloomy owing to accelerating ecological degradation.” Pandolfi, supra note 13, at 1725. Most recently, Richard Dodge, executive director of the National Coral Reef Institute, reportedly stated that “[r]eef related activities generate more than $4 billion for the economy of southeast Florida alone.” Brian Skoloff, “Florida Officials Try to Shield Coral Reefs,” WRAL.com News, http://www.wral.com/news/science/story/1504965 (June 15, 2007). It seems reasonable, therefore, to assert that coral reefs generate tourism benefits worth significantly more than $1 billion annually to Florida. 22 2007 CORAL RESEARCH PLAN, supra note 20, at 1. 23 2000 CORAL NATIONAL ACTION PLAN, supra note 13, at 2.


annual dockside value of commercial U.S. fisheries from coral reefs [was] over $100 million,” while “[t]he annual value of reef-dependent recreational fisheries probably exceeds $100 million per year.”24 In 2002, NOAA “calculate[d] that U.S. commercial reef fisheries today are worth over $137.1 million to fishermen.”25 The relative values of reef tourism and reef fishing vary by location, but in both Hawaii and California, tourism values exceed fishing values by a significant margin. In a 2003 report, the Hawaii Coral Reef Initiative concluded that: Hawaii’s coastal reefs generate almost $364 million in added value. “Added value” is the net business revenues (income minus costs) that are directly and indirectly attributable to resident and tourist activities on Hawaii’s reefs. About 84% of this added value ($304 million) is generated from snorkeling and diving and emerges from $700-$800 million in gross sales per year.26 “Added value from property generates another $40 million each year”; in sharp contrast to both snorkeling and diving and property values, “[t]he added value for nearshore fisheries within the main Hawaiian Islands’ coastal reefs is about $2.5 million.”27 As the Initiative thus emphasized, “[o]ver two generations, reefs surrounding the main Hawaiian Islands will have contributed over $18 billion to the economy,”28 mostly as a result of tourists who want to immerse themselves in healthy coral reef ecosystems.29 The value of Florida coral reef ecosystems derives from more mixed human uses. As noted, recreational fishing is an important industry in Florida. However, “[t]he reef tract of the Florida Keys is the largest coral reef within the continental United States and is the third largest coral reef on the planet,”30 and “[t]he Florida Keys coral reefs are the number one dive destination in the world.” “Four million tourists visit the Florida Keys contributing $1.2 billion to tourism-related services every year.”31 In contrast, as of 1999, “the annual dockside value of reef-dependent fisheries [in Florida] is estimated at $48.4 million.”32 Thus, protection of its coral reefs for tourism, even if such protection restricts fishing, is in the United States’ economic best interests. This article examines the legal vehicles that currently exist in the United States for protecting U.S. coral reefs and suggests how they might be improved. Specifically, after introducing the concepts of marine protected areas (MPAs) and marine reserves, Part I surveys the existing federal statutes that allow for the creation of these 24

Id. TURGEON, supra note 15, at 2. 26 HAWAII CORAL REEF INITIATIVE, THE FIRST FOUR YEARS: HAWAII CORAL REEF INITIATIVE RESEARCH PROGRAM 1998-2002, at 23 (Dec. 2003) (emphasis added). 27 Id. 28 Id. 29 See POC REPORT, supra note 5, at 15 (emphasizing the importance of coral reef ecosystems to tourism in Hawaii). 30 Id. at 30. 31 Office of Wetlands, Oceans, and Watersheds, U.S. EPA, Habitat Protection: Coral Reef Initiatives, http://www.epa.gov/owow/oceans/coral/initiative.html (last updated June 21, 2006). 32 NOAA, Tortugas 2000: Protecting Florida’s Coral Reefs (Oct. 29, 1999), available at http://publicaffairs.noaa.gov/releases99/oct99/noaa99r418.html. 25


protections and the states’ and territories’ efforts to create coral reef MPAs and marine reserves in their waters. Part II, in turn, discusses the “problem of legal priority” in U.S. law, concluding that, despite scientific and policy recognition for the importance of coral reef ecosystems and their associated tourism values, American law still favors fishing over ecosystem protection. Finally, this article concludes that, in concert with the recommendations of the Pew Oceans Commission and U.S. Commission on Ocean Policy, Congress should: (1) clearly prioritize the creation and expansion of coral reef ecosystem no-take marine reserves; and (2) streamline the federal law processes for creating such marine reserves by increasing the role of direct presidential and/or congressional designation. I. PROTECTING CORAL REEFS IN THE UNITED STATES A.

Introduction

Coral reefs are some of the most biologically diverse ecosystems, second only to tropical rainforests.33 This biodiversity – the infinite variety of color and form – makes healthy coral reef ecosystems attractive to tourists. This biodiversity also makes reefs productive fishing grounds, but overfishing often renders fishing and tourism competing uses of coral reef ecosystems.34 In 2002, a five-year survey of over 1,100 coral reefs worldwide concluded that “overfishing has affected 95 percent” of those reefs.35 That same year, with respect to United States coral reefs, NOAA noted that, “[a]ccording to coral reef managers, the greatest human-related impacts on the broadest scale are over-harvesting of coral reef resources and fishing-associated habitat destruction.”36 Overfishing threatens Florida, Puerto Rico, the USVI, the Main Hawaiian Islands, American Samoa, and to a lesser degree reefs around other populated islands. In the South Atlantic, Gulf of Mexico, and Caribbean, NOAA identified 23 reef fish as overfished and concluded there was too little data to determine the status of another 232 species. As a result, four species of Western Atlantic grouper have been added to the list of candidate species under the Endangered Species Act.37 The aquarium trade also stresses these coral reef ecosystems, because “[t]he United States is the largest importer of ornamental coral reef species, responsible for around 70-95% of the global trade in coral and ‘live rock’ and nearly half of the total worldwide trade in marine aquarium

33

Stone, supra note 14, at 678. Pandolfi, supra note 13, at 1725; Robin Kundis Craig, Taking Steps Toward Marine Wilderness Protection? Fishing and Coral Reef Marine Reserves in Florida and Hawaii, 34:2 MCGEORGE LAW REVIEW 155, 186-96 (Winter 2003) [hereinafter Craig 2003]; Jeremy B.C. Jackson, et al., Historical Overfishing and the Recent Collapse of Coastal Ecosystems, 293 SCIENCE 629, 631-33 (July 27, 2001); CALLUM M. ROBERTS & JULIE P. HAWKINS, FULLY PROTECTED MARINE RESERVES: A GUIDE 9-12 (2000). 35 A. Bridges, World’s Coral Reefs in Serious Decline: Overfishing Worsens Situation, http://production.enn.com/news/wire-stories/2002/08/08272002/s_4269.asp (2002). 36 TURGEON, supra note 15, at 2. 37 Id. (reference omitted). 34


fishes. Most of the ornamental fish and invertebrates originating from U.S. waters come from Hawai’i and Florida, with smaller numbers originating in Puerto Rico, the USVI, and Guam.”38 Given this conflict with fishing, ensuring the continued health of a U.S. coral reef ecosystem, and hence the health of the tourism industry that depends upon it, requires legal protections.39 Such legal protection is especially necessary because the reefs that most tourists visit, those off the coasts of the Main Hawaiian Islands and Florida, are also significantly degraded.40 Ironically, however, the legal solution for protection and promoting the tourism value of coral reefs – marine protected areas (MPAs) and marine reserves41 – should also prove prove beneficial to the nation’s coral reef-based fishing industries. MPAs are location-based legal protections for marine ecosystems –the ocean equivalent of terrestrial national and state parks.42 The most protective MPAs are marine reserves. Marine reserves generally prohibit all extractive uses of the marine ecosystem, including fishing.43 Some marine reserves prohibit all access except for scientific research, but most tourism-related marine reserves allow non-extractive recreational uses such as snorkeling, diving, and boating.44 In the United States, the value of MPAs and especially marine reserves to coral reef tourism is obvious. For example, residents of the U.S. Virgin Islands have initiated a Reef Ranger Project to protect and restore the islands’ coral reefs.45 In addition, the territory’s Department of Tourism touts the protected areas of Buck Island National Reef Monument, the Virgin Islands National Park, and Cinnamon Bay National Park.46 Similarly, in response to increased take for the aquarium trade, Hawaii, Florida, the U.S. Virgin Islands, Puerto Rico, and Guam responded by creating new MPAs, marine reserves (no-take zones) and “landmark legal settlements.”47

38

Id. at 3-4. Pandolfi, supra note 13, at 1726. 40 Id. at 1725-26. 41 2000 NATIONAL CORAL ACTION PLAN, supra note 13, at v (emphasizing that the U.S. should reduce the adverse effects of human activities on coral reefs “by creating an expanded and strengthened network of federal, state, and territorial Marine Protected Areas” and “reducing the adverse impacts of extractive uses”). 42 TURGEON, supra note 15, at 4 n.9 (defining an MPA in accord with President Clinton’s Marine Protected Areas Executive Order (Executive Order No. 13158) to be “an area of the marine environment that has been reserved by Federal, State, Territorial, Tribal, or Local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein”). 43 ROBERTS & HAWKINS, supra note 34, at 6. 44 TURGEON, supra note 15, at 4 n.9 (noting that in no-take zones or marine reserves, “resource extraction has been prohibited to protect biodiversity and/or to enhance certain fish stocks”). 45 United States Virgin Islands Department of Tourism, Nature & Wildlife, http://www.usvitourism.vi/en/home/vi_nature_wildlife.html (last visited May 27, 2007). 46 United States Virgin Islands Department of Tourism, Buck Island, http://www.usvitourism.vi/en/stcroix/sc_Visitor_Favorites.html?visit=buck (last visited May 27, 2007); United States Virgin Islands Department of Tourism, Virgin Islands National Park. http://www.usvitourism.vi/en/stjohn/sj_Visitor_Favorites.html?visit=park (last visited May 27, 2007); United States Virgin Islands Department of Tourism, Cinnamon Bay. http://www.usvitourism.vi/en/stjohn/sj_Visitor_Favorites.html?visit=cinna (last visited May 27, 2007). 47 TURGEON, supra note 15, at 4. 39


Nevertheless, in 2002, NOAA reported that, for most U.S. coral reef ecosystems, “notake protection is only 5% or less of the total reef ecosystem,” despite a national goal of protecting at least 20 percent of U.S. coral reefs by 2010.48 In 2005, in Science, eleven scientists called for the “[i]mmediate increase of cumulative no-take areas of all U.S. reefs to >30%” and the immediate reduction of “fishing efforts in adjacent areas” in order to improve the status of U.S. coral reefs.49 These scientists argued that increased additional reserves were necessary, in concert with more comprehensive protections for coral reefs generally, because “the scale of coral reef management – with mechanisms such as protected areas – has been too small and piecemeal”; “[r]eefs must be managed as entire ecosystems”; “restoring food webs and controlling eutrophication provides a first line of defense against climate change”; and “[s]topping overfishing will require integrated systems of no-take areas and quotas to restore key functional groups.”50 MPAs and marine reserves should be a win-win solution for both the tourism and fishing industries. Indeed, as a result of overfishing and the collapse of many marine fish stocks, [t]he economic status of U.S. commercial marine fisheries is declining. . . . Increasing annual catches to long-term sustaining levels could add at least $1.3 billion to the U.S. economy. . . . Restoring marine ecosystems and fish populations to a status capable of supporting higher but sustainable yields will require an era of transition en route to a more sustainable future.51 Research has demonstrated that MPAs and marine reserves that are scientifically chosen to protect important fish habitats, such as breeding grounds or nurseries, can be quite effective in increasing both the numbers and size of targeted species of fish.52 With regard to coral reefs, “efforts to limit fishing and human activity have paid dividends in healthier reefs and revived local fisheries.”53 Nevertheless, establishing coral reef MPAs and especially no-take marine reserves remains a highly contested process in the United States, largely because of fishing. Both the commercial and the recreational fishing industries are active politically, and in general they have opposed new coral reef marine reserves. For example, as I have explored in depth elsewhere, conflicts with fishers both hampered and finally limited the establishment of marine reserves in the Florida Keys.54 Even more indefensibly, a handful of fishers stalled full protection for the Northwestern Hawaiian Islands’ coral reefs for half a decade.55

48

Id.at 12. Pandolfi, supra note 13, at 1726. 50 Id. at 1725, 1726. 51 PEW OCEANS COMMISSION, SOCIOECONOMIC PERSPECTIVES ON MARINE FISHERIES 1 (2003). 52 POC REPORT, supra note 5, at 34; Craig 2003, supra note 34, at 169-72; Robin Kundis Craig, Taking the Long View of Ocean Ecosystems: Historical Science, Marine Restoration, and the Oceans Act of 2000, 29:4 ECOLOGY LAW QUARTERLY 649, 681-87 (2002) [hereinafter Craig 2002]; ROBERTS & HAWKINS, supra note 34, at 13-27. 53 Stone, supra note 14, at 678. 54 Craig 2003, supra note 34, at 224-39. 55 Id. at 251-60. 49


Despite these conflicts, the policies and laws underlying coral reef protection in the United States remain relatively unexamined, despite the fact that the lack of clear legal priority and a plethora of statutory mandates – sometimes conflicting – inhibit full promotion of coral reef tourism. This patchwork of legal authority also divides management of U.S. coral reefs among several federal agencies and the “state, territorial, and commonwealth government agencies in Florida, Puerto Rico, the U.S. Virgin Islands, Hawaii, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.”56 Nevertheless, in dissecting legal structure and policy with an eye to improving protections for U.S. coral reefs and their associated tourism values, federal law provides a useful starting point. Federal law provides several vehicles for and approaches to creating MPAs and marine reserves, and the past implementation of these vehicles suggests some improvements for the future. B.

MPA Creation through Federal Agency Process 1.

The National Marine Sanctuaries Act

Title III of the Marine Protection, Research and Sanctuaries Act of 1972,57 known as the National Marine Sanctuaries Act, allows NOAA to designate “any discrete area of the marine environment” as a national marine sanctuary if NOAA finds that: (1) the area is of special national significance; (2) the area needs protection; and (3) the area is manageable.58 Once designation is final, no one can use or remove sanctuary resources except in accordance with federal law.59 Thus, the 13 national marine sanctuaries that currently exist60 are MPAs. However, despite the fact that NOAA can overrule the regional Fishery Management Councils regarding fishing regulations within National Marine Sanctuaries,61 very few national marine sanctuaries have included marine reserves because the National Marine Sanctuaries Act emphatically encourages multiple uses of these areas.62 Nevertheless, some marine reserve experimentation is beginning. The Dry Tortugas Ecological Reserve in the Florida Keys National Marine Sanctuary, established to protect coral reefs, is probably the most famous example.63 Even so, it is questionable whether the National Marine Sanctuaries Act provides the most effective legal mechanism to protect U.S. coral reef ecosystems. The designation process is long and arduous,64 and both of the two most recent coral reef sanctuary proposals – the Florida Keys National Marine Sanctuary and what was supposed to become the Northwestern Hawaiian Islands (NWHI) National Marine Sanctuary – failed to complete the Act’s processes, largely 56 57 58 59 60 61 62 63 64

2007 CORAL RESEARCH PLAN, supra note 20, at 3, 5. 16 U.S.C. §§ 1431-1445a 16 U.S.C. § 1433(a). 16 U.S.C. § 1436(1), (2). NOAA, National Marine Sanctuaries: Welcome, http://sanctuaries.noaa.gov (last revised June 18, 2007). 16 U.S.C. § 1434(a)(5). 16 U.S.C. § 1433(b). Craig 2003, supra note 34, at 234-39. 16 U.S.C. §§ 1434, 1435.


because of conflicts with fishers.65 Congress eventually created the Florida Keys National Marine Sanctuary through special legislation in 1990,66 while President Bush created the NWHI as a Marine National Monument under the Antiquities Act.67 2.

The Magnuson-Stevens Fishery Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and Management Act68 establishes “[a] national program for the conservation and management of the fisheries resources in the United States” in order “to prevent overfishing, to rebuild overfished fish stocks, to insure conservation, and to realize the full potential of the Nation’s fishery resources . . . .”69 Moreover, when Congress amended the Magnuson-Stevens Act through the 1996 Sustainable Fisheries Act,70 it incorporated both a precautionary approach to and a sustainable development goal for the country’s fisheries management.71 Pursuant to the 1996 amendments, the regional Fisheries Management Councils have begun to experiment with an ecosystem approach to fisheries management, including the use of zoning and MPAs. With respect to coral ecosystems, for example, on June 28, 2006, NOAA used its authority under the Magnuson-Stevens Act to amend five fishery management plans for Alaska fisheries to prohibit trawling in 370,000 square miles of Alaska waters.72 This regulation effectively created two MPAs – a 320,000-square-mile area in the Aleutian Islands and a 50,000square-mile area in the Gulf of Alaska – to protect Alaska’s cold-water coral gardens, one of the slowest growing marine ecosystems in the world.73 Nevertheless, the emphasis of the Magnuson-Stevens Act is on the allowance of fishing. As a result, no-take marine reserves generated pursuant to its authority remain rare. Moreover, “[t]he regional fishery management councils can restrict removal of species within their control, but they cannot set aside an area as a closure for all species.”74 3.

The Endangered Species Act

65

Id. at 251-60. Florida Keys National Marine Sanctuary Protection Act, Pub. L. No. 101-605, 104 Stat. 3089, codified at 16 U.S.C. § 1433. 67 George W. Bush, Proclamation No. 8031: Establishment of the Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443 (2006). 68 16 U.S.C. §§ 1801-1884. 69 16 U.S.C. § 1801(a)(6). 70 Sustainable Fisheries Act (SFA), Pub. L. No. 104-297, 110 Stat. 3559 (1996). 71 Id. § 102. See also Robin Kundis Craig, Oceans and Estuaries, in JOHN C. DERNBACH, ED., STUMBLING TOWARD SUSTAINABILITY 247-48 (2002) (explaining the effect of the 1996 amendments). 72 National Oceanic & Atmospheric Administration, Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska, 71 Fed. Reg. 36,694, 36,694-99 (2006) (revising several fishery management plans to protect the corals as Essential Fish Habitat and Habitat Areas of Particular Concern). 73 NOAA Fisheries Service Habitat Conservation, Ecosystem Assessment Division, Cold-Water Corals or Deep Sea Corals, http://www.nmfs.noaa.gov/habitat/ead/coldwatercorals.html. 74 STEPHEN C. PALUMBI, PEW OCEAN COMMISSION, MARINE RESERVES: A TOOL FOR ECOSYSTEM MANAGEMENT AND CONSERVATION 5 (2003). 66


The federal Endangered Species Act (ESA) seeks “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species . . . .”75 The U.S. Fish & Wildlife Service and NOAA list species for protection under the Act if a review of five factors, using “the best scientific and commercial data available,” reveals that those species are threatened with extinction (endangered) or likely to become threatened with extinction (threatened).76 At the same time, the listing agency is supposed to designate “critical habitat” for the species – habitat that is essential to the species’ conservation and recovery.77 Listing under the Act generally entitles a species to two sets of protections: requirements that federal agencies conserve the species and ensure that their actions do not jeopardize the continued existence of the species,78 and general prohibitions on the take of or commercial trade in that species.79 Since 1973, the ESA has been used far more often to protect terrestrial and fresh water species than marine species. However, on May 9, 2006, NOAA listed two species of coral – elkhorn coral (Acropora palmata) and staghorn coral (Acropora cervicornis) – as threatened species under the Act.80 However, because NOAA considered the Acropora species to be threatened rather than endangered, NOAA could limit the protections available to the corals. The Endangered Species Act’s “take” prohibitions apply directly only to species listed as “endangered.”81 With respect to threatened species, the Act only makes it illegal for any person to “violate any regulation pertaining . . . to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by [the relevant agency] pursuant to authority provided by this chapter.”82 Within the Act’s listing provisions, “[w]henever any species is listed as a threatened species . . . [the relevant agency] shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.”83 Thus, the exact protections that threatened species receive vis-à-vis non-federal actors depend on the listing agency’s decisionmaking, not the Act itself.84 NOAA declared that the ESA’s general prohibitions on take and commercial trade did not apply to the corals, but it did not promulgate regulations to substitute special protections for the two species.85 Nor did NOAA establish critical habitat for the two coral species, concluding that “[t]he designation of critical habitat is not determinable at this time due to the extremely 75

16 U.S.C. § 1531(b). 16 U.S.C. §§ 1532(6), (20), 1533(a), (b). 77 16 U.S.C. § 1533(a). 78 16 U.S.C. § 1536. 79 16 U.S.C. § 1538(a). 80 National Oceanic & Atmospheric Administration, Endangered and Threatened Species: Final Listing Determination for Elkhorn Coral and Staghorn Coral, 71 Fed. Reg. 26,852 (2006). 81 16 U.S.C. § 1538(a)(1). 82 16 U.S.C. § 1538(a)(1)(G). 83 16 U.S.C. § 1533(d). 84 Madeline June Kass, Threatened Extinction of Plan Vanilla 4(d) Rules, 16 NATURAL RESOURCES & ENVT. 78, 78-79, 80 (Fall 2001). 85 National Oceanic & Atmospheric Administration, Endangered and Threatened Species: Final Listing Determination for Elkhorn Coral and Staghorn Coral, 71 Fed. Reg. 26,852, 26,859-60 (2006). 76


complex biological and physical requirements of these two Acroporid species.”86 As a result, the only protections that the Acropora corals currently receive as a result of the ESA are the requirements that apply to federal agencies.87 Actions by individuals, local governments, and state governments with respect to the corals cannot violate the Act. Given these limitations, and in Florida in particular, the ESA listing of the Acropora corals gives little additional protection to the Florida Keys coral reef ecosystem not already accomplished through the establishment of the Florida Keys National Marine Sanctuary. More generally, despite its nominal goal to protect ecosystems, the ESA has rarely embraced a broader ecosystem focus.88 C.

Direct Congressional Action: Specific Legislation

Despite the National Marine Sanctuaries Act, Congress remains free to establish federal coral reef MPAs and marine reserves through direct legislation. The Florida Keys National Marine Sanctuary, which Congress established in 1990 through the Florida Keys National Marine Sanctuary and Protection Act,89 is the most prominent example of such direct congressional protection. In that Act, Congress prohibited tanker vessel traffic and mineral, oil, and gas exploration and development within the Sanctuary. However, it left fishing regulation to NOAA, while requiring NOAA to “consider temporal and geographical zoning” in the Sanctuary’s management plan “to ensure protection of sanctuary resources.”90 In drafting the management plan for the Florida Keys National Marine Sanctuary, NOAA gave establishment of a marine zoning plan the highest priority – the first such extensive use of marine zoning in a national marine sanctuary.91 The final management plan for the Sanctuary, adopted in 1997, uses both marine zoning and 23 marine reserves to protect sanctuary resources.92 In addition, on July 1, 2001, regulations became effective that established the Tortugas Ecological Reserve, consisting of a 90-square-nautical-mile reserve in the north and a 60-square-nautical-mile reserve in the south.93 However, largely as a result of conflicts with

86

Id. at 26,860. Robin Kundis Craig, Water Flow, Water Quality, and Threatened Corals in Florida: Are the Everglades and the Florida Keys Now Competing Ecosystems?, 22 NATURAL RESOURCES & ENVT. (forthcoming Fall 2007). 88 ROBERT W. ADLER, RESTORING COLORADO RIVER ECOSYSTEMS: A TROUBLED SENSE OF IMMENSITY 113, 177-87 (2007). 89 Florida Keys National Marine Sanctuary Protection Act, Pub. L. No. 101-605, 104 Stat. 3089 (1990), codified at 16 U.S.C. § 1433. 90 Id. § 7(a)(2). 91 NOAA, FLORIDA KEYS NATIONAL MARINE SANCTUARY FINAL MANAGEMENT PLAN/ENVIRONMENTAL IMPACT STATEMENT, Vol. I, at 257 (1996). 92 National Oceanic & Atmospheric Administration, Florida Keys National Marine Sanctuary Final Regulations, 62 Fed. Reg. 4578 (1997); National Oceanic & Atmospheric Administration, Florida Keys National Marine Sanctuary Final Regulations, 62 Fed. Reg. 32,154 (1997). 93 NOAA, Florida Keys National Marine Sanctuary: Tortugas Ecological Reserve Effective July 1, 2001, http://floridakeys.noaa.gov/tortugas/current_plans/implementation; see also NOAA, Florida Keys National Marine Sanctuary Regulations, 65 Fed. Reg. 31,634 (May 18, 2000) (establishing the Tortugas Ecological Reserve). 87


fishers,94 “only 6% of the Sanctuary is zoned no take, and these zones are not strategically located. . . . Florida’s reefs are well over halfway toward ecological extinction . . . .”95 D.

Blending Presidential and Congressional Action: The Spur of Executive Orders

U.S. Presidents have long protected coral reefs through the use of executive orders. Executive orders are a very weak form of law. Essentially, they are directives from the President to the federal executive agencies, and subsequent Presidents are free to eliminate or change these orders at will.96 However, executive orders can inspire the U.S. Congress to enact more permanent legal protections. The Northwestern Hawaiian Islands (NWHI) present one example of a coral reef ecosystem that has benefited repeatedly from this interplay between the President and Congress. In 1909, President Theodore Roosevelt reserved all of the NWHI except Midway “for the use of the Department of Agriculture as a preserve and breeding ground for native birds.”97 Building on this order, in 1940 President Franklin D. Roosevelt renamed the Reserve as the Hawaiian Islands National Wildlife Refuge.98 The designation of the NWHI Coral Reef Ecosystem Reserve came about through a blending of congressional and presidential action. In November 2000, Congress authorized President Clinton, in consultation with the Governor of Hawaii, to “designate any Northwestern Hawaiian Islands coral reef or coral reef ecosystem as a coral reef reserve to be managed by the Secretary of Commerce . . . .”99 President Clinton exercised this authority in December 2000,100 establishing the NWHI Coral Reef Ecosystem Reserve, which set aside an area that protected 70% of U.S. coral reefs.101 The executive order also proposed the use of marine zoning, including the establishment of marine reserves (“Reserve Preservation Areas”).102 Finally, the order capped all fishing.103 However, Congress did not permanently eliminate other sources of legal authority that could apply in the NWHI, such as the Magnuson-Stevens Act. In addition, Congress demanded “adequate review and comment” before the Reserve Preservation Areas could become permanent.104 After seven public hearings on the executive order’s proposal, however, President

94

Craig 2003, supra note 34, at 229. Pandolfi, supra note 13, at 1725. 96 Robin Kundis Craig, The Coral Reef Task Force: Protecting the Environment Through Executive Order, 30 Environmental L. Rep 10,343, 10,356 (May 2000) [hereinafter Craig 2000]. 97 Theodore Roosevelt, Executive Order No. 1019 (1909). 98 NOAA, U.S. FISH & WILDLIFE SERVICE, & STATE OF HAWAII, NORTHWESTERN HAWAIIAN ISLANDS MARINE NATIONAL MONUMENT: A CITIZEN’S GUIDE 12 (Sept. 2006). 99 National Marine Sanctuary Amendments Act of 2000, Pub. L. No. 106-513, 114 Stat. 2381 (2000). 100 William J. Clinton, Executive Order No. 13,178: Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, 65 Fed. Reg. 76,903 (2000). 101 Id. at 76,904, §3. 102 Id. at 76,908, §8. 103 Id. at 76,907. ß7. 104 Pub. L. No. 106-554, § 144(f)(3), 114 Stat. 2763, 2763A-249 (Dec. 21, 2000). 95


Clinton was able to issue the final NWHI Coral Reef Ecosystem Reserve Executive Order on January 18, 2001,105 three days before he left office. E.

Direct Presidential Action: The Antiquities Act

The Antiquities Act is very short. Under it, “[t]he President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.”106 While use of the Antiquities Act has had a predominantly terrestrial focus, Presidents have also repeatedly used it to create marine-related national monuments that function as MPAs, including to protect coral reefs. For example, President Kennedy created the Buck Island Reef National Monument in the U.S. Virgin Islands through the Antiquities Act.107 Most recently, on June 15, 2006, President Bush finally resolved the procedural nightmare encountered in protecting the NWHI by using the Antiquities Act to create the NWHI Marine National Monument,108 since renamed the Papahānaumokuākea Marine National Monument.109 This monument protects almost 140,000 square nautical miles of ocean around the long chain of islands stretching north and west of Kauai.110 The monument is now the largest MPA in the world, protecting the largest and arguably most pristine remote coral reef ecosystem in the world. President Bush’s proclamation establishing the monument is very protective of the coral reef ecosystem. All commercial fishing is to be phased out over five years.111 Moreover, even recreational snorkeling and diving are prohibited in the Special Preservation Areas and Midway Atoll Special Management Area.112 Thus, effectively, most of the Papahānaumokuākea Marine National Monument is or will become a marine reserve, the largest such reserve on the planet. F.

State MPA Authority and Coral Reef Protection

Under U.S. law, coastal states and territories generally manage the first three geographical miles of ocean off their coasts113 and hence have the ability to establish their own 105

William J. Clinton, Executive Order No. 13,196: Final Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, 66 Fed. Reg. 7,395 (2001). 106 Antiquities Act (Act of June 8, 1906), 34 Stat. 225, §2 (1906) (codified at 16 U.S.C. § 431). 107 See William J. Clinton, Proclamation 7391: Boundary Enlargement of the Buck Island Reef National Monument, 66 Fed. Reg. 7335, 7335 (Jan. 17, 2001) (noting that “Buck Island Reef National Monument was established on December 28, 1961 (Presidential Proclamation 3443)”). 108 George W. Bush, Proclamation No. 8031: Establishment of the Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443 (2006). 109 NOAA, Papahānaumokuākea Marine National Monument, http://www.hawaiireef.noaa.gov (last updated May 15, 2007). 110 NOAA, Papahānaumokuākea Marine National Monument: About Us, http://www.hawaiireef.noaa.gov/about/welcome.html (last revised June 8, 2007). 111 George W. Bush, Proclamation No. 8031: Establishment of the Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443, 36,447-48 (2006). 112 Id. at 36,446. 113 Submerged Lands Act of 1953, 43 U.S.C. § 1312.


MPAs. In February 2007, NOAA concluded that all seven of the United States jurisdictions that “have abundant coral reef ecosystems within their state and territorial waters” – American Samoa, the Commonwealth of the Northern Mariana Islands, Florida, Guam, Hawaii, Puerto Rico, and the U.S. Virgin Islands – “have recognized that to successfully conserve coral reef ecosystems, ecologically important reef areas need to be identified and managed distinctively within the broader marine environment. As a result, each of these jurisdictions has formally acknowledged that marine protected areas (MPAs) are an important coral reef management tool and have taken measures to officially incorporate this tool into their local marine resource management regimes.”114 NOAA’s report identified 207 MPAs in the seven coral reef jurisdictions.115 Florida has established the most coral reef MPAs (82),116 followed by Hawaii (39),117 Puerto Rico (35), the U.S. Virgin Islands (24),118 American Samoa (14), the Commonwealth of the Northern Mariana Islands (8),119 and Guam (5).120 Over three-quarters of these 207 MPAs “are multiple use areas that allow some level of extractive activity throughout the entire site. The remaining 49 MPAs include no-take areas in which the harvesting of marine resources is prohibited.”121 “Approximately 45 percent of the notake sites are located in the Atlantic-Caribbean region”; the rest are in the Pacific Ocean states and territories.122 Hawaii has established the most no-take MPAs (12), followed by Florida and American Samoa (10 each), Puerto Rico and the U.S. Virgin Islands (6 each), the Commonwealth of the Northern Mariana Islands (4) and Guam (1).123 State and territorial MPAs serve a variety of purposes. For example, over half of Guam’s, American Samoa’s, and Hawaii’s coral reef MPAs focus on sustainable production124 – that is, they were “established and managed to support the continued extraction of renewable living resources.”125 Such MPAs therefore suggest a strong interest in supporting continued fishing. In contrast, over 90 percent of Florida’s and Puerto Rico’s MPAs, about 70 percent of the U.S. Virgin Islands’ MPAs, but less than 40 percent of Hawaii’s MPAs emphasize the reefs’ natural heritage values126 – that is, they were “established and managed to sustain, conserve, restore, and understand the biodiversity, populations, communities, habitats, ecosystems, processes, and

114

DANA WUSINISH-MENDEZ & CARLEIGH TRAPPE, EDS., NOAA, REPORT ON THE STATUS OF MARINE PROTECTED AREAS IN CORAL REEF ECOSYSTEMS OF THE UNITED STATES, VOLUME I: MARINE PROTECTED AREAS MANAGED BY U.S. STATES, TERRITORIES, AND COMMONWEALTHS iii (2007) [hereinafter 2007 STATE CORAL MPA REPORT]. 115 Id. 116 See PALUMBI, supra note 74, at 4 (mapping marine reserves in the Florida Keys). 117 See id. at 3 (mapping marine reserves in Hawaii). 118 See id. at 4 (mapping marine reserves in the U.S. Virgin Islands). 119 See id. at 3 (mapping Pacific Island marine reserves). 120 2007 STATE CORAL MPA REPORT, supra note 114, at 4, fig. A. 121 Id. at iii. 122 Id. at 4. 123 Id. at 5, fig. C. 124 Id. at 6, fig. E. 125 2007 STATE CORAL MPA REPORT, supra note 114, at 3. 126 Id. at 6. fig. E.


services of an MPA or MPA zone.”127 These MPAs thus suggest a more tourism-based and/or science-based focus on coral reef ecosystem protection. The U.S. Virgin Islands and the Commonwealth of the Northern Mariana Islands have the greatest percentages of MPAs designated to protect cultural heritage values – that is, MPAs “established and managed to protect and understate submerged cultural resources”128 – although both also have significant percentages of natural heritage sites.129 Protection of stressed species can also suggest the biodiversity and tourism value of state MPAs and marine reserves. About 40 percent of the state coral reef MPAs protect fish spawning areas, while 80 percent protect habitat for endangered and threatened species.130 However, these calculations do not include the Acropora corals, which “were listed as federally threatened species after completion” of the state MPA inventory; including those coral species “would increase the number of sites with threatened or endangered species significantly.”131 II. THE PROBLEM OF LEGAL PRIORITY: PROTECTION OF FISHING VS. PROTECTION OF MARINE BIODIVERSITY AND ECOSYSTEMS A.

Tourism vs. Fishing

While the tourism value of the United States’ coral reef ecosystems is threatened by a number of stressors,132 the most important source of political conflict over protecting coral reefs has been from fishing interests.133 As researchers have noted more generally, “[c]urrent fisheries practice effectively ignores” “the trade-offs to biodiversity and populations structure within ecosystems that result from high levels of extraction,”134 but “the weight of evidence overwhelmingly indicates that the unintended consequences of fishing on marine ecosystems are severe, dramatic, and in some cases irreversible.”135 However, the social and economic realities of the fishing industry have hamstrung political and legal evolution in ocean policy, despite increasing evidence that MPAs and marine reserves can benefit both marine ecosystems and fisheries interests136:

127

Id. at 2. Id. at 3. 129 Id. at 6, fig. E. 130 Id. at 7, fig. G. 131 2007 STATE CORAL MPA REPORT, supra note 114, at 7. 132 2007 CORAL RESEARCH PLAN, supra note 20, at 1; Pandolfi, supra note 13, at 1726, USCOP REPORT, supra note 2, at 322-23. 133 Craig 2003, supra note 34, at 222-60; see also Pandolfi, supra note 13, at 1725 (“Overfishing of megafauna releases population control of smaller fishes and invertebrates, creating booms and busts. This in turn can lead to algal overgrowth, or overgrazing, and stress the coral architects, likely making them more vulnerable to other forms of stress. This linked sequence of events is remarkably consistent worldwide”); USCOP REPORT, supra note 2, at 322 (“Many scientists believe that excessive fishing pressure has been the primary threat to coral ecosystems for decades.”). 134 PAUL K. DAYTON, SIMON THURSH, & FELICIA C. COLEMAN, PEW OCEANS COMMISSION, ECOLOGICAL EFFECTS OF FISHING IN MARINE ECOSYSTEMS OF THE UNITED STATES ii (2003). 135 Id. at 1. 136 Id. at 34; see also PALUMBI, supra note 74, at 28-29 (detailing the advantages of marine reserves to fishing as well as ecosystems). 128


[T]he single most important problem of fishing – that too many fish are killed each year – is partly rooted in the social and economic dimensions of fisheries, which are inseparable from the ecological dimensions. Social and economic pressures contribute to the fact that excessive fishing effort persists in the current management arena, sometimes through manager inaction, through ineffective regulations, or through inadequate support of law enforcement.137 “The fundamental trade-off is between fish for human consumption and fish for the rest of the ecosystem”138 – and for the tourists who depend on that ecosystem – leading almost inevitably to political conflict. “Fishing as a commercial lifestyle is under threat almost everywhere in the U.S., and the seas are crowded with competing users.”139 This political conflict between fishers, on the one hand, and the diving and snorkeling tourism industries and scientists, on the other, raises significant questions regarding the best legal tool for protecting coral reef ecosystems and their tourism benefits, yet no law or policy in the United States currently resolves that conflict. Indeed, “[t]he authority to create marine reserves remains unclear for the vast majority of U.S. ocean waters,” and, with the “notable exception” of California, which passed the Marine Life Protection Act “to provide the governance framework for marine reserves,” “[o]ther states and the U.S. federal government do not have such a blueprint, making the process for establishment of marine reserves unclear.”140 As a result, fishing has enjoyed a de facto legal priority in coral reef protection law. Nevertheless, tensions regarding that de facto priority have been emerging since the late 1990s as the United States has explicitly sought to protect coral reefs and to improve its national ocean policies and laws. B.

The Tension in Coral Reef-Specific Laws and Policies in the United States

The explicit drive to protect coral reefs and an emphasis on MPAs arose most directly from executive orders that President William J. Clinton issued near the end of his presidency. On June 11, 1998, President Clinton issued Executive Order No. 13089, which requires (President Bush has maintained the order) all federal agencies to protect coral reefs.141 In addition, the order created the U.S. Coral Reef Task Force,142 which issued its final National Action Plan to Conserve Coral Reefs in March 2000.143 The main goal of the Action Plan was “an interconnected system of coral reef Marine Protected Areas (MPAs) that would regulate use of the coral reef ecosystems of the United States through marine zoning, based on accurate mapping and cutting-edge scientific research,” including a goal of setting aside 20% of the existing coral reef MPAs as no-take fisheries reserves (also referred to as “marine wilderness

137

PAUL K. DAYTON, SIMON THURSH, & FELICIA C. COLEMAN, PEW OCEANS COMMISSION, ECOLOGICAL EFFECTS OF FISHING IN MARINE ECOSYSTEMS OF THE UNITED STATES 30-31 (2003). 138 Id. at 32. 139 PALUMBI, supra note 74, at ii. 140 Id. at 5. 141 William J. Clinton, Executive Order No. 13,089: Coral Reef Protection, 63 Fed. Reg. 32,701, 32,702, §3 (1998); Craig 2000, supra note 96, at 10,346. 142 William J. Clinton, Executive Order No. 13,089: Coral Reef Protection, 63 Fed. Reg. 32,701, 32,702, §4 (1998). 143 2000 CORAL NATIONAL ACTION PLAN, supra note 13.


areas”) by 2010.144 Additional presidential support for the Coral Reef Task Force’s coral reef MPA goals came in May 2000, when President Clinton issued his MPA Executive Order in order to “creat[e] the framework for a national system of marine protected areas.”145 Congress also showed some support for coral reef MPAs when it passed the Coral Reef Conservation Act146 on December 23, 2000, although Congress simultaneously put into tension the United States’ priorities with respect to coral reefs. At one level, the new Act ratified the existence of the Coral Reef Task Force and its National Action Plan. For example, the purposes of the Act are, in part, “to preserve, sustain, and restore the condition of coral reef ecosystems” and “to promote the wise management and sustainable use of coral reef ecosystems to benefit local communities and the Nation.”147 Moreover, the Act requires a National Coral Reef Action Strategy, which must discuss “conservation, including . . . the use of marine protected areas.”148 However, the Coral Reef Conservation Act also subordinated coral reef protection and the creation of coral reef MPAs – which would help promote tourism – to other U.S. ocean policies, including fishing. First, the Act assigned the National Coral Reef Action Strategy to the Secretary of Commerce, not the Coral Reef Task Force, although consultation with the Task Force was encouraged.149 Second, while the Secretary of Commerce was to address MPAs, the discussion in the National Strategy was to focus on “how the use of marine protected areas to serve as replenishment zones will be developed consistent with local practices and traditions.”150 Third, while the Secretary of Commerce “may conduct activities to conserve coral reefs and coral reef ecosystems,” those conservation activities must be consistent with the federal Magnuson-Stevens Fishery Conservation and Management Act.151 Finally, to emphasize the subordination of coral reef protection to fisheries management, the Act’s definition of “conservation” stresses that coral reef MPA development must be consistent with the MagnusonStevens Act.152 C.

The Tension in the Ocean Commissions’ Recommendations for the Future

This tension between the preservation of coral reef ecosystems for biodiversity and associated tourism purposes and the promotion of fishing interests has continued despite the declining condition of coral reefs worldwide and in the United States.153 In the beginning years of the George W. Bush Administration, two commissions, the Pew Oceans Commission and the U.S. Commission on Ocean Policy, reviewed the United States’ national ocean policies. Both commissions concluded that overfishing was a serious problem for U.S. marine ecosystems – including coral reefs – and recommended policy and legal changes to address overfishing. 144

Id. at 17, 20; see also Craig 2000, supra note 96, at 10,352. William J. Clinton, Executive Order No. 13,158: Marine Protected Areas, 65 Fed. Reg. 34,909 (2000). 146 Coral Reef Conservation Act of 2000, Pub. L. No. 106-562, 114 Stat. 2800 (2000), codified at 16 U.S.C. §§ 6401-6409. 147 16 U.S.C. § 6401(1). 148 16 U.S.C. § 6402(b)(8). 149 16 U.S.C. § 6402. 150 16 U.S.C. § 6402(b)(8). 151 16 U.S.C. § 6406(a). 152 16 U.S.C. § 6409(2). 153 Stone, supra note 14, at 678-79; Pandolfi, supra note 13, at 1725. 145


Nevertheless, the contrasting rhetoric of the two reports again reveals a tension regarding the priority of MPAs and marine reserves for future law and policy. 1.

The Pew Oceans Commission’s Report

The Pew Oceans Commission issued its report, America’s Living Oceans: Charting a Course for Sea Change, in May 2003.154 As the report’s title suggests, this commission focused on U.S. living marine resources. The Pew Commission took a strong stewardship-based approach to improving the regulation of these resources. For example, it concluded that although “a price tag has never been assigned to our coastal economy, it is clear that it contributes significantly to the nation’s overall economic activity. Tens of thousands of jobs in fishing, recreation, and tourism depend on healthy, functioning coastal ecosystems.”155 As a result, “[m]aintaining healthy ecosystems is crucial. When we sacrifice healthy ecosystems, we must also be prepared to sacrifice economic and social stability.”156 Moreover, problems with U.S. ocean governance include “its focus on exploitation of ocean resources with too little regard for environmental consequences” and its focus “on individual species as opposed to the larger ecosystems that produce and nurture all life in the sea.”157 To correct these problems, “[o]ur society needs an ethic of stewardship and responsibility toward the oceans and their inhabitants.”158 The Pew Commission also focused on overfishing as a primary cause of marine ecosystem decline. For example, while noting that a variety of stressors have contributed to marine ecosystem degradation, the Commission emphasized that, “[m]ost obviously we are depleting the oceans of fish, and have been for decades . . . .”159 Overfishing has economic implications both for fishing and other industries, and “thousands of jobs and billions of dollars of investment have either been lost or are jeopardized by collapsing fisheries.”160 Given these two emphases – preserving marine ecosystem functioning and eliminating the effects of overfishing – marine reserves were a critical component of the Commission’s recommendations for the future. As one of the supporting reports to the final Report noted, Marine reserves were designed to reduce the impact of human activity on marine ecosystems, particularly the ecological damage caused by overfishing of some coastal areas. . . . Because they protect habitats and all the species that use them, marine reserved are a management tool that affects representative parts of whole ecosystems. The value of this approach comes from the differences between protecting all the species in a functioning ecosystem versus protecting a few species through focused management.161

154 155 156 157 158 159 160 161

POC REPORT, supra note 5. Id. at v. Id. at 8. Id. at 9. Id. POC REPORT, supra note 5, at 2. Id. at v. PALUMBI, supra note 74, at 7.


As this description suggests, moreover, the Pew Commission clearly recognized that marine ecosystems are worth more than the extractive value of the goods that they produce.162 In particular, “[t]he value of healthy ecosystems also arises from the tourist dollars they generate.”163 The Pew Commission also noted that there is a “growing marine ecotourism industry” in the United States that increasingly demands intact and functional marine ecosystems164 and that “[c]oastal tourism and recreation account for 85 percent of all tourism revenue, which is the second largest contributor to the U.S. gross domestic product.”165 Nevertheless, as the Pew Commission pointed out, “[w]hile 4.6 percent of the land area of the United States is preserved as wilderness, the area of ocean under U.S. jurisdiction that is protected in marine reserves is a small fraction of one percent.”166 Its recommendation for marine reserves in very much in line with its overall vision of U.S. ocean policy: “Congress should enact legislation mandating the establishment of a national system of marine reserves to protect marine ecosystems, preserve our national ocean treasures, and create a legacy for our children.”167 The Pew Commission did not single out coral reef ecosystems for particular protection, but it did note repeatedly that the U.S. coral reefs face a variety of stressors. These stressors include global climate change,168 disease,169 and, especially, overfishing.170 Moreover, it also used coral reef ecosystems repeatedly as examples. For example, the Commission noted that “[t]he reef tract of the Florida Keys is the largest coral reef within the continental United States and is the third largest coral reef on the planet”; moreover, “[t]he Florida Keys National Marine Sanctuary has substantially improved governance of the marine ecosystems of the Keys through the use of marine zoning.”171 In addition, the Commission noted the tourism value of coral reefs in Hawaii.172 Finally, individual reports contributing to the Commission’s final report emphasized the win-win potential of coral reef MPAs and marine reserves for both coral reef ecosystems and the fisheries they support.173 2.

The U.S. Commission on Ocean Policy’s Report

162

Id. at 12-13. Id. at 12 (citation omitted). 164 POC REPORT, supra note 5, at 35. 165 Id. at 49. 166 Id. at 34. 167 Id. 168 Id. at vii, 5, 83-84. 169 POC REPORT, supra note 5, at 6 (describing how coral reef disease is increasing in Florida, such that approximately 75% of the reefs there now show some sign of disease, with an approximate 40% decline in stony coral cover between 1996 and 1999). 170 Id. at 8 fig. 2 (showing reef decline as a result of overfishing of apex predators), 36 (“Fishing has contributed to large changes in coral reef ecosystems of the Caribbean”). See also PALUMBI, supra note 74, at 18-20 (describing in detail the degradation of coral reefs as a result of overfishing). 171 POC REPORT, supra note 5, at 30. 172 Id. at 15. 173 PALUMBI, supra note 74, at 22-24. 163


The U.S. Commission on Ocean Policy issued its report – An Ocean Blueprint for the 21st Century – in September 2004.174 While the U.S. Commission more explicitly connected fishing policy to coral reef protection than did the Pew Commission, it also implicitly highlighted the tension between coral reef tourism and commercial fishing by emphasizing that “approximately one-half of all federally managed commercial fish species depend on coral reefs for at least part of their life cycle.”175 Moreover, “[i]n the U.S. waters of the south Atlantic, Gulf of Mexico, and Caribbean, two-thirds of reef fish species are overfished.”176 In other words, coral reefs were important to the U.S. Commission primarily for their value to fishing. Nor did the Commission fully acknowledge the tourism value of coral reef ecosystems (or any other marine ecosystems) in its policy recommendations for either coral reefs or marine protected areas. This lack of more specific focus on measures needed to support the tourism sector is inexplicable in light of the U.S. Commission’s acknowledgement of the importance of the tourism and recreation sector.177 However, in one of the U.S. Commission’s report’s major disconnects, the Commission largely failed to link its discussions of tourism and recreation, MPAs, fishing, and coral reefs or to explore the relationship between tourism and recreation and the United States’ policies regarding MPAs. Instead, the report discusses MPAs and marine reserves primarily as a general management tool for coordinating government regulation in federal waters.178 In this mode, the U.S. Commission on Ocean Policy noted the limitations of existing U.S. MPA policies and programs. For example, “[a]lthough the primary purpose of [the national marine] sanctuary program is to ensure long-term protection of natural and cultural resources, the sanctuaries incorporate a number of interests and plan for a variety of uses while pursuing management, research, and public education activities.”179 Moreover, while the National Marine Protected Areas Center180 created as a result of President Clinton’s 2000 MPA Executive Order “has made progress in improving coordination and working to establish a national system of marine protected areas; however, further consolidation of the many related federal programs may be needed.”181 The Commission did recognize the potential role of MPAs in protecting the nation’s marine resources generally. Thus, “[a]lthough at times controversial, appropriately designed and implemented marine protected areas have proven useful.”182 The Commission cited the National Research Council’s 2001 report on MPAs183 as evidence that “marine protected areas can be 174

USCOP REPORT, supra note 2. Id. at 322. 176 Id. at 323. 177 Id. at 31, fig. 1.1. 178 Id. at 103. 179 USCOP REPORT, supra note 2, at 103. 180 National Marine Protected Areas Center, Marine Protected Areas of the United States, http://mpa.gov (last revised May 15, 2007). 181 USCOP REPORT, supra note 2, at 104. 182 Id. 183 NATIONAL RESEARCH COUNCIL, MARINE PROTECTED AREAS: TOOLS FOR SUSTAINING OCEAN ECOSYSTEMS (2001) [hereinafter 2001 NRC MPA REPORT]. 175


effective in maintaining marine biological diversity and protecting habitats, and have the potential to provide a flexible, spatially-based management framework for addressing multiple ecological and socioeconomic objectives.”184 It concluded that “[m]arine protected areas are important tools for ecosystem-based management, although they will not in and of themselves deliver long-term sustainable use of the oceans.”185 Moreover, the Commission emphasized that “marine protected areas are most effective when they are designed within the broader context of regional ecosystem planning and management, and when they are employed in conjunction with other management tools.”186 Nevertheless, the U.S. Commission declined to offer substantive recommendations to Congress regarding which ecosystems to protect or even what percentage of U.S. ocean waters should be protected in MPAs and marine reserves. Instead, its MPA recommendations dealt primarily with process: “The National Ocean Council should develop national goals and guidelines leading to a uniform process for the effective design, implementation, and evaluation of marine protected areas.”187 Moreover, “[t]o create effective and enforceable marine protected areas, regional ocean councils and appropriate federal, regional, state, and local entities should work together on marine protected area design, implementation, and evaluation.”188 Revealingly, moreover, the U.S. Commission on Ocean Policy also emphasized that “[t]he design of marine protected areas should not unreasonably limit important national interests, such as international trade, national security, recreation, clean energy, economic development, and scientific research.”189 It thus figured MPAs and marine reserves as potential impediments to recreation and economic development, not as tools for preserving and improving marine ecosystem tourism, including coral reef tourism. The Commission’s references to MPAs elsewhere in its report similarly divorced MPAs and marine reserves from the economics of tourism. For example, when discussing conservation of coastal habitat, the Commission noted that MPAs “can be designed by different levels of government for a variety of reasons, including habitat conservation.”190 Perhaps more disconcertingly, while recommending an ecosystem-based approach to fisheries management, the Commission downplayed the role of MPAs, noting only that: Fisheries managers have also used marine protected areas to either promote stock recovery or, in some circumstances, prevent damage to special habitats. In addition, marine protected areas established for other purposes have benefited

184

USCOP REPORT, supra note 2, at 104; see also 2001 NRC MPA REPORT, supra note 183, at 175-76 (concluding that “[a] growing body of literature documents the effectiveness of marine reserves for conserving habitats, fostering the recovery of overexploited species, and maintaining marine communities” and that “[n]etworks of marine reserves, where the goal is to protect all components of the ecosystem through spatially defined closures, should be included as an essential element of ecosystem-based management”). 185 USCOP REPORT, supra note 2, at 104. 186 Id. 187 Id. at 105. 188 Id. at 106. 189 Id. at 105. 190 USCOP REPORT, supra note 2, at 171.


many fisheries. The initial steps in designing marine protected areas need to be improved.191 Instead, the Commission focused its recommendations on essential fish habitat, recommending that “[t]he National Marine Fisheries Service (NMFS) should change the designation of essential fish habitat from a species-by-species to a multispecies approach and, ultimately, to an ecosystem-based approach. The approach should draw upon existing efforts to identify important habitats and locate optimum-sized areas to protect vulnerable life-history stages of commercially and recreationally important species.”192 The U.S. Commission was more explicit in connecting MPAs to coral reef protection. Specifically, it recommended that Congress “establish a Coral Protection and Management Act that enhances research, protection, management, and restoration of coral ecosystems,” “including the use of marine protected areas.”193 Similarly, it recommended that the U.S. Coral Reef Task Force receive statutory authority to “coordinate the development and implementation of regional ecosystem-based plans to address the impacts of nonpoint source pollution, fishing, and other activities on coral reef resources.”194 Finally, with respect to ornamental coral reef resources (ornamental fish and “live rock”), the Commission recommended that NOAA “develop national standards – and promote adoption of international standards – to ensure that coral reef resources are harvested in a sustainable manner.”195 Nevertheless, consistent with its linking of commercial fishing and coral reefs, and in contrast to the Pew Commission, the U.S. Commission was far more focused on the continued extractive use of coral reef ecosystems than on their general long-term preservation to support and promote tourism and recreation values. For example, the Commission suggested the use of MPAs only to provided “increased protection for vulnerable coral reefs,” not as a pro-active strategy for the marine tourism industry. Its discussion of coral reef ecosystem protection, moreover, focused on reducing the impacts of fishing – not necessarily of reducing fishing itself.196 Perhaps most obviously, with respect to ornamental coral reef resources (ornamental fish and “live rock”), the Commission recommended that NOAA “should develop national standards – and promote adoption of international standards” not to preserve and recover coral reef ecosystems but rather “to ensure that coral reef resources are harvested in a sustainable manner.”197 Despite its recognition of the economic value of marine tourism, therefore, the U.S. Commission’s report gives the distinct impression of wanting to limit the pure preservation of marine ecosystems in favor of continued (if more sustainable) use. Thus, even though coral reefs receive special attention in the report, the report does not assess the tourism-driven needs for those ecosystems, nor does it stress the use of MPAs as tourism-promoting, as well as ecosystem-enhancing, management tools. 191 192 193 194 195 196 197

Id. at 295. Id. at 298. Id. at 325. Id. at 326 (emphasis added). USCOP REPORT, supra note 2, at 327. Id. at 326. Id. at 327 (emphasis added).


3.

The Bush Administration’s Response to the Commissions’ Reports a.

The U.S. Ocean Action Plan

On December 17, 2004, the Bush Administration both created, through Executive Order, a cabinet-level Committee on Ocean Policy198 and responded to the U.S. Commission’s Report with a U.S. Ocean Action Plan.199 The Action Plan announced 88 specific actions that the Administration intended to take to improve federal regulation of marine resources. However, it nowhere even contemplated an integrated, ecosystem-based approach to ocean management.200 Instead, the Action Plan largely reinforced the existing fragmented regulatory structure, for example dividing into separate actions coral reef conservation, conservation of marine mammals, sharks, and sea turtles, improvement of marine managed areas, and conservation and restoration of coastal habitat.201 While the U.S. Ocean Action Plan recognized that “[a]s a nation, we have benefited enormously from our oceans, coasts, and Great Lakes,”202 it generally refused to set relative priorities among the values that marine ecosystems provide, ranking overseas trade, tourism, fishing, offshore oil and gas production, and the marine biochemical and biomedical industries rhetorically (if not economically) equal.203 Nevertheless, the Bush Administration characterized the Plan as “outlin[ing] the fundamental components, both in response to the Oceans Commission report as well as recent action, which together provide the foundation to advance the next generation of ocean, coastal, and Great Lakes policy. Taken in its entirety, this response engenders responsible use and stewardship of ocean and coastal resources for the benefit of all Americans.”204 In the context of this Article, one of the most interesting parts of the Plan is its failure to prioritize between fishing interests and coral reef protection. Indeed, as was true for the U.S. Ocean Commission Report, the U.S. Ocean Action Plan fails to even recognize a potential conflict between the two goals. Thus, the Administration highlighted both its intention to “[w]ork with Regional Fisheries Councils to [p]romote [g]reater use of [a m]arket-based [s]ystem for [f]isheries [m]anagement,” emphasizing individual fishing quotas,205 and the need to “[i]mplement [c]oral [r]eef [l]ocal [a]ction [s]trategies,” emphasizing that “[t]he U.S. Coral Reef Task Force and the members of its seven jurisdictions . . . have developed coral reef local action strategies to address key threats to coral reefs in their jurisdictions..”206 198

Exec. Order No. 13366, 69 Fed. Reg. 76,591 (Dec. 17, 2004). GEORGE W. BUSH ADMINISTRATION, U.S. OCEAN ACTION PLAN: THE BUSH ADMINISTRATION’S RESPONSE TO THE U.S. COMMISSION ON OCEAN POLICY (Dec. 17, 2004) [hereinafter 2004 U.S. OCEAN ACTION PLAN]. 200 See, e.g., Helen V. Smith, A Summary Analysis of the U.S. Commission on Ocean Policy’s Recommendations for a Revised Federal Ocean Policy, and the Bush Administration’s Response, 14 SOUTHEASTERN ENVTL. L.J. 133, 155-56 (Fall 2005) (discussing how the Bush Administration has largely avoided ecosystem-based management, especially in its fisheries bill). 201 2004 U.S. OCEAN ACTION PLAN, supra note 199, at 20-21, 21-22, 23-24, 27-29, respectively. 202 Id. at 3. 203 Id. 204 Id. at 3-4. 205 Id. at 4. 206 2004 U.S. OCEAN ACTION PLAN, supra note 199, at 5. 199


The Administration addressed fishing, coral reefs, and MPAs in a single section of the Plan, “Enhancing the Use and Conservation of Ocean, Coastal, and Great Lakes Resources.”207 With respect to fisheries, the first focus of this section, the Plan’s overall goal is to achieve sustainable marine fisheries, both commercial and recreational saltwater, “[i]n order to maintain these two industries as a healthy part of the U.S. economy and to promote a healthy marine ecosystem . . . .”208 However, contrary to both the Pew Oceans Commission and the U.S. Commission on Ocean Policy, the Bush Administration showed no interest in ecosystem-based fisheries management or increased use of MPAs. Instead, its six specific improvements were largely procedural and/or limited in focus: working with the Magnuson-Stevens Act regional Fishery Management Councils to promote greater use of market-based systems for fisheries management; fostering balanced representation on those Councils; harmonizing recreational fishing data acquisition among states, the Councils, and interstate fishery commissions; establishing guidelines and procedures for using science in fisheries management; fostering sustainable harvest of key Caribbean and southeast Atlantic species, such as the spiny lobster and queen conch; and establishing a plan for combating illegal foreign fishing.209 Coral reefs were the Administration’s second focus, and the overall goal of the U.S. Ocean Action Plan with respect to those reefs was to “[p]romote [c]oral [r]eed and [d]eep [c]oral [c]onservation and [e]ducation.”210 Like the U.S. Commission on Ocean Policy, however, the Bush Administration emphasized the value of coral reefs to fishing. Thus, while the Plan acknowledged that coral reefs are “[i]mportant assets to local and national economies” and “provide fisheries for food, materials for new medicines, and income from tourism and recreation, as well as protect coastal communities from storms,” the only economic values cited were for commercial fishing: “NOAA estimates the commercial value of U.S. fisheries from coral reefs is over $100 million.”211 As with fishing, moreover, the Bush Administration did not connect MPAs to coral reef protection, nor did it discuss the relationships, trade-offs, and potential mutuality between coral reef protection and fisheries management and restoration. Instead, the Plan’s seven specific actions were: implementing local coral reef action strategies at the state level; protecting the Northwestern Hawaiian Island Coral Reef Ecosystem Reserve; forming new international partnerships, such as one among NOAA, Florida, and Australia’s Great Barrier Reef Marine Park Authority, to enhance coral reef management; re-establishing the interagency marine debris coordinating committee to address the effects of marine debris on coral reefs; fostering coral reef conservation by recreational boaters and land-based agricultural interests, to reduce physical damage and land-based pollution, respectively; developing “biocriteria” for coral reefs to assist states, territories, and Tribes in assessing the health of their reefs; and researching, surveying, and protecting deep-sea coral reef ecosystems, which are different and rarer ecosystems than the tropical and sub-tropical coral reefs that attract tourists.212

207 208 209 210 211 212

Id. at 18-25. Id. at 18. Id. at 18-19. Id. at 20. 2004 U.S. OCEAN ACTION PLAN, supra note 199, at 20. Id. at 20-21.


The Ocean Action Plan did state that the United States should “[i]mprove [m]arine [m]anaged [a]reas,” but the Bush Administration left the relationships of these areas to either fisheries management or coral reef protection undiscussed.213 Instead, the Administration sought to coordinate and better integrate the existing “network” of marine managed areas, noting that “[m]any National Marine Sanctuaries, National Parks, National Wildlife Refuges and National Estuarine Research Reserves around the nation overlap, adjoin or lie near each other at various sites. . . . Taking steps to integrate the existing marine managed areas network represents a new way to promote coordination of research, public education and management activities at neighboring parks, refuges, sanctuaries, and estuarine reserves.”214 Nevertheless, the Administration emphasized that any actions to improve the national marine managed areas “will be consistent with maintaining appropriate navigational freedoms for commerce needs,” 215 effectively subjugating marine ecosystem protection to navigation and commerce priorities. Potentially more protective was the Plan’s Ocean Parks Strategy, to be implemented by the National Park Service.216 “Key elements of the Strategy include” characterizing marine species and habitats; evaluating and monitoring their condition; increasing the understanding of how marine ecosystems function; and developing cooperative science based fishery management plans between parks and State agencies, such as the Florida Fish and Wildlife Conservation Commission/Biscayne National Park Fisheries Management Plan.”217 Thus, the Ocean Parks Strategy potentially realized the relationship between fisheries management and marine ecosystem protection, but the locus of fisheries management was the States, not federal fisheries management law or policy, such as the Magnuson-Stevens Act or the regional Fisheries Management Councils. Nor did the Bush Administration relate this strategy to its coral reef goals – an omission even more striking given that its example, the Biscayne National Park, protects coral reefs in Florida.218 To be fair, the U.S. Ocean Action Plan does acknowledge that fisheries can impact other species within the ecosystem, such as dolphins, sea turtles, and the myriad of species caught accidentally as “bycatch.”219 Nevertheless, it never integrates these acknowledgements into a comprehensive vision for, or even relative prioritization of, the nation’s living marine resources, let alone comprehensively discusses the relative priorities between living marine resources and other use values of the oceans. The rhetorical result is a distinct privileging of traditional commercial uses of the ocean, including fishing. b.

The 2007 Update to the U.S. Ocean Action Plan

In its January 2007 Update to the Action Plan, the Bush Administration essentially declared its task complete, emphasizing that “we have met the [Ocean Action Plan] commitment

213 214 215 216 217 218

Id. at 23. Id. at 23-24. Id. at 24. 2004 U.S. OCEAN ACTION PLAN, supra note 192, at 24. Id. National Park Service, Biscayne National Park Florida, http://www.nps.gov/bisc (last updated April 4,

2007). 219

2004 U.S. OCEAN ACTION PLAN, supra note 192, at 22.


for 73 of the 88 actions and nearly met the commitments in 4 larger multi-action items”220 – despite the facts that NOAA still lacked an organic act, the United States still lacked any overarching national oceans policy, established management priorities, or regulatory regime, and regulatory fragmentation remained the law of marine resources. Of the Administration’s many actions to implement the U.S. Ocean Action Plan’s objectives for fishing, coral reefs, and marine management areas, only the Ocean Parks Strategy shows any sign of cross-correlating coral reef protection, fishing, and MPAs. On December 1, 2006, the National Park Service issued its Ocean Park Stewardship Plan, noting that it protects three million coastal acres and 5000 miles of coast in the National Park system.221 Moreover, this program includes 275,000 acres in 10 National Parks – two in south Florida, four in the U.S. Virgin Islands, two in the Hawaiian Islands, one in Guam, and one in American Samoa.222 CONCLUSION Coral reef ecosystems and the tourism interests they support continue to suffer in the United States from fragmented laws and policies that privilege fishing interests at the expense of more extensive no-take marine reserves, despite the demonstrated economic value of coral reef tourism and despite the potential for MPAs and marine reserves to benefit both tourism and fishing interests. The variety of legal vehicles for establishing MPAs – and the different policy goals they implement – gives credence to concerns that both the Pew Oceans Commission and the U.S. Commission on Ocean Policy raised regarding the uncoordinated patchwork of laws and regulatory programs that govern the nation’s oceans.223 However, differences in these regulatory regimes and their effectiveness in establishing coral reef MPAs can also suggest improvements in the law that might better effectuate sustainable use of the nation’s coral reef ecosystems. NOAA’s 2007 report on coral reef MPAs suggests that the states and territories most directly affected by coral reef tourism and coral reef fishing understand the value of coral reef MPAs and marine reserves. Moreover, these coral reef jurisdictions established 71 percent of their 207 coral reef MPAs to protect and/or to study the coral reefs, and 78 percent of their MPAs established ecosystem-scale protections; in contrast, less than 25 percent “were established to support the continued extraction of renewable living resources.”224 However, vesting full coral reef ecosystem regulatory authority in these state and territorial governments is an unsatisfactory solution. First, and perhaps most importantly, large parts of the nation’s coral reef ecosystems lie outside state waters. As one example, the Papahānaumokuākea Marine National Monument in Hawaii encompasses both state and federal

220

COMMITTEE ON OCEAN POLICY, U.S. ACTION PLAN IMPLEMENTATION UPDATE i (Jan. 2007), available at http://ocean.ceq.gov/oap_update012207.pdf. 221 National Park Service, U.S. Dept. of the Interior, Above and Below the Waves: Coastal and Oceanic Treasures Conserved in the National Park System, http://www.npa.gov/pub_aff/oceans/conserve.htm (last updated Dec. 5, 2006). 222 National Park Service, Ocean Programs, http://www.nps.gov/pub_aff/oceans/programs.htm (last updated Dec. 5, 2006). 223 POC REPORT, supra note 5, at 26-34, 102-08; USCOP REPORT, supra note 2, at 76-115. 224 2007 STATE CORAL MPA REPORT, supra note 114, at 2, 3, 6.


waters.225 Similarly, in the Tortugas Ecological Reserve in the Florida Keys, the northern part of the Reserve lies mostly but not completely within Florida state waters, while the southern part of the Reserve was established almost entirely in federal waters.226 Second, as the NOAA report on state coral reef MPAs indicates, states and territories have limited resources to establish coral reef MPAs and marine reserves, to draft management plans, and to effectively enforce those management plans and public use restrictions.227 Third, the federal government retains the legal authority to preempt state law in coastal waters. For example, the Magnuson-Stevens Act allows federal regulators to take over fisheries management in state waters if state action “will substantially and adversely affect” a federal fishery management plan for a fishery that occurs in both state and federal waters.228 Therefore, without some federal law prioritization, there is no guarantee that state and territorial coral reef MPAs and marine reserves will be respected if federal interests conflict. Finally, the tourism and other benefits of coral reefs accrue more broadly than to just the seven coastal states and territories with coral reefs. This spreading of benefits indicates that a more protective national policy to support and finance protection of coral reef ecosystems and the tourism they support is warranted, especially in light of the potential benefits to nationally important commercial and recreational fisheries. Therefore, Congress should enact a national ocean policy that prioritizes coral reef MPAs and marine reserves, particularly in light of the increasing stress that global climate change is likely to place on the nation’s coral reef ecosystems.229 Both the Pew Oceans Commission and the U.S. Commission on Ocean Policy admitted the need to make U.S. fishing practices sustainable to protect marine ecosystems like coral reefs, and, as the Intergovernmental Panel on Climate Change recently noted, “[s]ustainable development can reduce vulnerability to climate change by enhancing adaptive capacity and increasing resilience.”230 At that federal level, direct action by either Congress or the President has been more effective in establishing coral reef ecosystem-based MPAs, as is demonstrated in the establishment the Florida Keys National Marine Sanctuary and the Papahānaumokuākea Marine National Monument. Nevertheless, it is also worth noting that considerable public process and debate preceded the establishment of both of these MPAs and contributed to their final effectiveness and public acceptance. As a result, the processes of establishing these two coral reef ecosystem MPAs suggest that a combination of federal agency public process, probably resulting in an agency recommendation, and presidential or congressional final decision may be

225

See NOAA, Northwestern Hawaiian Islands Marine National Monument, http://www.hawaiireef.noass.gov/maps/Map_of_NWHIMNM.pdf (showing that the Monument’s boundaries extend far beyond state waters); NOAA, Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 51,134, 51,134 (Aug. 29, 2006) (“The three principal entities with responsibility for managing lands and waters of the Monument – NOAA, USFWS, and the State of Hawaii (collectively, the Co-Trustees) – are working cooperatively and will consult to administer the Monument.”). 226 PALUMBI, supra note 74, at 36. 227 2007 STATE CORAL MPA REPORT, supra note 114, at 9. 228 16 U.S.C. § 1856(b) 229 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY: SUMMARY FOR POLICYMAKERS 6 (April 2007). 230 Id. at 18.


the most effective means of legally protecting the United States’ coral reef ecosystems and their associated tourism.
