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LAW AND POLICY DIGEST, VOLUME 2 NO. 2
(Plain Text Version) The Sea Grant Law and Policy Digest is a bi-annual publication indexing the law review and other articles in the fields of ocean and coastal law and policy published within the previous six months. Its goal is to inform the Sea Grant community of recent research and facilitate access to those articles. The staff of the Digest can be reached at: the Sea Grant Law Center, Kinard Hall, Wing E - Room 256, P.O. Box 1848, University, MS 38677-1848, phone: (662) 915-7775, or via e-mail at sealaw@olemiss.edu MASGP 02-011-02 Journals featured in this issue of the Law and Policy Digest
The repercussions
of September 11th have been felt in the marine insurance field,
especially with regard to insurance for losses caused by terrorism.
In recent legislation, the United States has embraced international
concepts like no-fault liability, liability caps, and a larger role
of private insurance. Bonner examines the impacts of these new laws
on oil spills caused by terrorist attacks.
Clyne, Robert
G. “Admiralty Law Institute: Confused Seas: Admiralty Law
in the Wake of Terrorism: Terrorism and Port/Cargo Security: Developments
and Implications for Marine Cargo Recoveries.” 77 Tulane
Law Review 1183-1222 (2003).
Clyne reviews
the history of terrorism from a maritime perspective and surveys
the legislation and various initiatives, relevant to carriage of
goods by sea, enacted since September 11th. Clyne also explores
the impact of these new laws and regulations on maritime cargo litigation.
Gruendel,
Robert J., and Angelique M. Crain. “Admiralty Law Institute:
Confused Seas: Admiralty Law in the Wake of Terrorism: The Maritime
Contract and Admiralty Jurisdiction: Recent Developments Help Clarify
an Inherently Confused Landscape.” 77 Tulane Law Review 1235-1263 (2003).
One of the
most challenged areas in maritime law is the extent of admiralty
jurisdiction over contracts. Gruendel and Crain discuss the admiralty
jurisdiction of federal courts, examine the categories of contracts
which clearly fall within or outside the courts’ jurisdiction,
and analyze recent contract cases exploring jurisdictional boundaries.
Hodges, Susan.
Case Note. “Seaworthiness: A New Calculus Factors in Environmental
Friendliness: Mobil Shipping & Transportation Co. v. Wonsild Liquid Carriers,
Ltd., 190 F.3d 64 (2d Cir. 1999).”
34 Journal of Maritime Law and Commerce
497-509 (2003).
Hodges examines
a recent decision by the United States District Court for the Southern
District of New York which introduced a new criterion for the assessment
of seaworthiness.
Parrish, Robert
B. “Admiralty Law Institute: Confused Seas: Admiralty Law
in the Wake of Terrorism: Preemption, Remedies, and Criminal Liability:
Environmental Issues and the Ramifications of Huron
Portland Cement Co. v. City of Detroit.”
77 Tulane Law Review 1265-1293 (2003).
Maritime
transportation of oil and hazardous substances is regulated by one
of the most comprehensive schemes in federal law. States, however,
are also permitted to regulate maritime transportation with regard
to pollution in the absence of a direct conflict with federal regulations.
Starting with Huron Portland Cement
Co., Parrish traces states’ exercise
of police power in the area of pollution control and examines attempts
to extend state regulation to vessel operations.
Robertson,
David W., and Michael F. Sturley. “The Admiralty Extension
Act Solution.” 34 Journal of Maritime Law and Commerce
209-308 (2003).
In the past,
admiralty practitioners had good guidelines for determining jurisdiction
in admiralty tort cases and identifying governing law in maritime
cases. Through a series of Supreme Court cases, those guidelines
were lost. Robinson and Sturley discuss the operation of the former
guidelines and propose a new interpretation of the 1949 Admiralty
Extension Act as a partial solution to problems that have arisen
as a result of the loss of those guidelines.
Robertson,
David W., and Michael F. Sturley. “Recent Developments in
Admiralty and Maritime Law at the National Level and in the Fifth
and Eleventh Circuits.” 27 The
Maritime Lawyer 495-591 (2003).
Robertson
and Sturley survey the recent developments in admiralty and maritime
law, focusing on the national level and the Fifth and Eleventh Circuits.
A wide range of topics are covered including state governmental
immunity, OSHA, preemption, the rights of seamen, the primary duty
doctrine, the status of non-vessel-operating common carriers, salvage,
collisions, and punitive damages.
Sanger, Ladd,
and Vickie S. Brandt. “Flying and Crashing on the Wings of
Fortuosity: The Case for Applying Admiralty Jurisdiction to Aviation
Accidents over Navigable Waters.” 68 Journal of Air Law and Commerce
283-338 (2003).
For years,
federal courts have struggled with whether airline crashes over
navigable waters give rise to torts recognizable under maritime
law. Sanger and Brandt provide a brief introduction to admiralty
law, discuss key cases in aviation litigation, and analyze the application
of maritime law to aviation litigation.
Schoenbaum,
Thomas J., and Jessica C. Langston. “Admiralty Law Institute:
Confused Seas: Admiralty Law in the Wake of Terrorism: An All Hands
Evolution: Port Security in the Wake of September 11th.” 77 Tulane Law Review 1333-1370 (2003).
Since September
11th, many experts fear that the U.S. shipping industry will be
the next terrorist target. Schoenbaum and Langston survey recent
international, national, state, and local initiatives to combat
terrorism and maintain open and efficient ports.
Alonso-Pérez,
Fernano, et. al. “Land Cover Changes and Impact of Shrimp
Aquaculture on the Landscape in the Ceuta Coastal Lagoon System,
Sinaloa, Mexico.” 46 Ocean and
Coastal Management 583-600 (2003).
Alonso-Pérez
and fellow authors assessed changes in natural cover and land use
within the Ceuta coastal lagoon system using mutlitemporal analysis
of Landsat imagery and examine the effects of the establishment
of a shrimp aquaculture industry. The study revealed that the shrimp
industry has changed the coastal landscape of the area in less than
fifteen years.
Firestone,
Jeremy, and Robert Barber. “Fish as Pollutants: Limitations
of and Crosscurrents in Law, Science, Management, and Policy.”
78 Washington Law Review 693-756 (2003).
A federal
court recently ruled that non-native Atlantic salmon “escapees”
from aquaculture facilities are pollutants within the meaning of
the Clean Water Act. Firestone and Barber examine, primarily in
the context of Atlantic salmon mariculture operations, whether fish
are and should be treated as pollutants. Firestone and Barber also
consider the policy implications of such a regime.
Pérez,
O.M., T. C. Telfer, and L. G. Ross. “Use of GIS-Based Models
for Integrating and Developing Marine Fish Cages within the Tourism
Industry in Tenerife (Canary Islands).” 31 Coastal Management 355-366 (2003).
Site selection
is a key factor in the success and sustainablity of an aquaculture
operation. Pérez, Telfer, and Ross used GIS and related technology
to develop a spatial database to locate the most suitable areas
in Tenerife for cage culture development in coexistence with tourism.
Romero, Bridget
B. Case Note. “Is There a Need to Regulate Mussel Harvesting?
The Ninth Circuit Declares No Pollution, No Problem!: Association
to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources,
Inc.” 10 Missouri Environmental Law
and Policy Review 158-178 (2003).
After reviewing
the recent holding by the Ninth Circuit that mussel shells and feces
are not pollutants and mussel harvesting rafts are not point sources
under the Clean Water Act, Romero examines the issue of whether
fish/shellfish byproducts may constitute pollutants when discharged
from aquaculture facilities, primarily focusing on Missouri’s
aquaculture facilities.
VanderZwaag,
David, Gloria Chao, and Mark Covan. “Canadian Aquaculture
and the Principles of Sustainable Development: Gauging the Law and
Policy Tides and Charting a Course – Part II.” 28 Queen’s
Law Journal 529-580 (2003).
VanderZwaag,
Chao, and Covan examine the extent to which the Canadian regulatory
framework for aquaculture embraces the four principles of sustainability:
integration, precaution, environmental impact assessment, and public
participation. Part I, published in the Fall 2002 issue of Queen’s
Law Journal, covered the aquaculture law and policies of the federal government
and the province of British Columbia. Part II contains a survey
of the Atlantic provinces and an evaluation of overall trends.
Barnhizer,
Daniel B, “Givings Recapture: Funding Public Acquisition of
Private Property Interests on the Coasts.” 27 Harvard
Environmental Law Review 295-375 (2003).
Government
“givings” are governmental actions which increase the
value of private property. Coastal floodplain development has increased
significantly during the last thirty years, driven in part by federal,
state, and local floodplain management policies which subsidize
the cost of living in floodplains. Barnhizer examines the issue
of government givings within floodplains and suggests changes to
federal floodplain management to facilitate the recapture of these
givings to fund public acquisition of redevelopment rights.
Davis, Braxton
C. “Inventory, Classification, and Analysis of Special Management
Areas Associated with U.S. Coastal Programs.” 31 Coastal
Management 339-354 (2003).
Over sixty
types of special management areas have been documented under U.S.
coastal management programs. This diversity lead to the development
of a classification scheme to allow comparisons and analyses across
programs. Davis suggests that the requirements and incentives for
special area designations under the Coastal Zone Management Act
failed to standardize or influence area-based management systems
associated with state coastal programs. In addition, the lack of
a clear pattern between programs with respect to special area policies
indicates a limited commitment to this aspect of coastal management.
Diamond, Nancy
K., Lesley Squillante, and Lynne Z. Hale. “Cross Currents:
Navigating Gender and Population Linkages for Integrated Coastal
Management.” 27 Marine Policy
325- 331 (2003).
Diamond,
Squillante, and Hale argue that too little cooperative work takes
place between integrated coastal management, gender, and population
organizations. An action agenda is proposed for governments, researchers,
and programs to improve these linkages, build new partnerships,
and attract new funding sources.
Douven, W.,
J. Burman, and W. Kiswara. “Spatial Information for Coastal
Zone Management: The Example of the Banten Bay Seagrass Ecosystem,
Indonesia.” 46 Ocean and Coastal Management 615-634
(2003).
Douven, Burrman,
and Kiswara seek to demonstrate the benefits of geo-information
technology to integrated coastal zone management. The use of spatial
databases and GIS in the policy analysis phase of coastal management
is highlighted with a case study of seagrass beds in Indonesia.
Eleveld, Marieke
A., Wolfram B. H. Schrimpf, and Ardy G. Siegert. “User Requirements
and Information Definition for a Virtual Coastal and Marine Data
Warehouse.” 46 Ocean and Coastal Management 487-505
(2003).
The European
Community supports the development of CoastBase, a European Virtual
Coastal and Marine Data Warehouse, to improve data and information
exchange. Eleveld, Schrimpf, and Siegert define the relevant and
obtainable data and information within CoastBase and discuss the
results of a study of user requirements.
Foster, Elizabeth
G. and Marcus Haward. “Integrated Management Councils: A Conceptual
Model for Ocean Policy Conflict Management in Australia.”
46 Ocean and Coastal Management
547-563 (2003).
Several Australian
coastal and marine policy initiatives identify the need to improve
sectoral and jurisdictional integration, including Australia’s
Ocean Policy. Foster and Haward review these initiatives and those
in other countries, specifically Canada, and propose Integrated
Management Councils as the next step in integrated and adaptive
management.
Haiqing Li.
“Management of Coastal Mega-Cities – A New Challenge
in the 21st Century.” 27 Marine Policy 333-337 (2003).
Haiqing Li
addresses the issues of coastal mega-cities and discusses the importance
of coastal mega-cities in integrated coastal management. Country
practices are also summarized and the outcome of an IOC-SOA international
workshop on coastal mega-cities is detailed.
Kay, Robert,
et. al. “Management Cybernetics: A New Institutional Framework
for Coastal Management.” 31 Coastal Management 213-227 (2003).
“Dimensional
thinking” allows the visualization of institutional structure,
assists with the assessment of the effectiveness of institution-stakeholder
relationships, and redesign. Coastal management programs were originally
a single dimension with programs delivered in isolation. Today most
have evolved to a second dimension, management of programs through
coordinating bodies and plans. Kay and co-authors developed a visualization
tool drawn from management cybernetics to illustrate a future third
dimension of institutional arrangements and illustrate its potential
application.
Krause, Gesche,
and Marion Glaser. “Co-evolving Geomorphical and Socio-economic
Dynamics in a Coastal Fishing Village of the Bragança Region
(Pará, North Brazil).” 46 Ocean
and Coastal Management 859-874 (2003).
A number
of socio-economic problems in the coastal fishing villages of the
Bragança Region are caused by unpredictable erosion patterns.
The different land use patterns developed by the different social
groups influence local coastal morphodynamics. Krause and Glaser
use the hydrodynamic signature and the socio-economic organization
of the coastal communities to determine the state of the coastal
system and develop policy actions.
McKenna, John,
et. al. “Obsolete Maps and Coastal Management: Case Studies
from Northwest Ireland.” 31 Coastal Management 229-246 (2003).
Rapid changes
at dynamic coastal sites can render legally authoritative maps obsolete,
aggravating coastal management problems. To illustrate this issue,
McKenna and fellow authors examine two case studies from County
Donegal in Northwest Ireland, one involving a century-old map and
the other rapid coastal erosion, and offer suggestions to mitigate
these problems.
Pérez-Sánchez,
Eunice, and James F. Muir. “Fishermen Perception on Resources
Management and Aquaculture Development in the Mecoacan Estuary,
Tabasco, Mexico.” 46 Ocean and Coastal Management 681-700
(2003).
Pérez-Sánchez
and Muir studied the perceptions of Mecoacan fishing communities
regarding the management of coastal resources and their awareness
of the potential impacts of coastal aquaculture.
Randall, Martin
M. “Coastal Development Run Amuck: A Policy of Retreat May
Be the Only Hope.” 18 Journal of Environmental Law and Litigation 145-185 (2003).
More than
fifty-three percent of the U.S. population lives in coastal areas.
Randall discusses the various factors that have promoted or restrained
coastal development in the last twenty years, including the National
Flood Insurance Program and the Coastal Barrier Resources Act. Randall
also examines the obstacles to the adoption of a public policy of
retreat from the coasts.
Rogers, Robert
L. III. “Turning River Water into Gold: Why Oyster Harvesters
Should Not Be Permitted to Cash in on Changes in Salinity Caused
by the Caernarvon Water Diversion Project.” 22 Virginia
Environmental Law Journal 53-80 (2003).
The Caernarvon
Water Diversion Project is an ambition project to preserve thousands
of miles of coastal wetlands in Louisiana by diverting water and
sediment from the Mississippi River to marshlands. This diversion,
however, will change the salinity of surrounding waters, raising
concerns that fishermen, oyster harvesters, and others with property
interests will succeed in suits for damages cause to traditional
harvesting grounds. Rogers examines the litigation surrounding the
Caernarvon Water Diversion Project with a particular focus on the
claims filed by oyster harvesters.
Tagliani,
P. R. A., et. al. “Integrated Coastal Zone Management in the
Patos Lagoon Estuary: Perspectives in Context of [a] Developing
Country.” 46 Ocean and Coastal
Management 807- 822 (2003).
The Patos
Lagoon Estuary is located on the southern Brazilian coast and a
variety of economic sectors in nearby cities, such as shrimp fisheries
and tourism, rely heavily on the estuary. Tagliani and co-authors
describe a recent initiative to implement an integrated coastal
zone management program for the estuary.
UNESCO, A
Reference Guide on the Use of Indicators for Integrated Coastal
Management - ICAM Dossier 1, IOC Manuals and Guides No. 45 (2003).
International
Coastal Management guidelines developed by international organizations
underscore the importance of indicators to monitor environmental
changes, assess trends, and gauge effectiveness. Building on a background
paper prepared for an international workshop in 2002, UNESCO presents
a literature review on the use of coastal indicators at the global,
regional, national, and local level. (Available from UNESCO at http://ioc.unesco.org/icam/files/Dossier.pdf ).
West, Mary
Beth. “Improving Science Applications to Coastal Management.”
27 Marine Policy 291-293
(2003).
West discusses
the draft International Plan of Action to Improve Status and Trends
Reporting, the Global Ocean Observing System, and the “Geographic
Information for Sustainable Development” initiative. West
also considers the role of science in the responsible stewardship
of the world’s oceans.
Leichter,
James J., Hannah L. Stewart, and Steven L. Miller. “Episodic
Nutrient Transport to Florida Coral Reefs.” 48 Limnology
and Oceanography 1394-1407 (2003).
Leichter,
Stewart, and Miller studied the changes in nutrient fluxes associated
with a high frequency form of upwelling in the Florida Keys caused
by internal tidal bores. The study revealed that there is a rather
large offshore nutrient pump. Naturally-occurring nitrogen and phosphorus
are delivered to the coral reefs via upwellings. These “nitrogen
deliveries” can occur several times a day and deliver twenty
to forty times more nitrogen and phosphorus to the outer coral reefs
in Florida than sewage and storm water runoff.
The H. John
Heinz III Center for Science, Economics and the Environment. Dam
Removal Research: Status and Prospects (William L. Graf ed., 2003)
In 1999,
the Heinz Center convened a panel of experts to identify potential
outcomes of small dam removal and connect scientific research to
the decision-making process. The panel’s work was detailed
in a 2002 Center report, Dam Removal:
Science and Decision Making. The panel recommended that a
technical conference or workshop on the scientific aspects of dam
removal be held to improve interdisciplinary communication. The
Dam Removal Research Workshop was held in October 2002. Dam Removal Research: Status and
Prospects includes the papers presented
during the workshop and a summary of the workshop discussions. (Available from the Heinz Center at http://www.heinzctr.org/ ).
Wegner, David
L. “Snake River Dam Breaching: River and Salmon Politics in
the George W. Bush Administration.” 33 Golden Gate University Law Review 419-445 (2003).
The U.S.
Army Corps of Engineers operates four dams on the lower Snake River,
a major tributary of the Columbia River. Wegner examines the present
state of salmon affairs in the Snake River, discusses the administrative
and legislative history of the river, outlines some reasons for
the salmon decline, and proposes actions to move beyond the bureaucratic
stalemate.
Rodgers,
Spencer, and David Nash. North Carolina Sea Grant. The Dune Book
(2003).
In this new
publication from North Carolina Sea Grant, Rodgers and Nash present
guidelines and best management practices for dune management along
developed shorelines in North Carolina. Rodgers and Spencer begin
by describing the benefits of sand dunes and dune vegetation, how
the beach works, and the various types of beach erosion. The Dune Book provides detailed
information on the best dune grasses for the North
Carolina coast, along with planting and fertilizing tips. The chapter
on Best Management Practices for dune building addresses such issues
as fencing, access, beach scraping, and permitting. (Available from North Carolina Sea Grant at http://www.ncseagrant.org/files/dune_booklet.pdf ).
Delgado, Christopher
L., Nikolas Wada, Mark W. Rosegrant, Siet Meijer, and Mahfuzuddin
Ahmed. Fish to 2020: Supply and Demand in Changing Global Markets
(2003).
Delgado and
fellow authors examine the future of world fisheries based on economics,
rather than environmental factors. Through computer modeling of
global supply and demand, the authors project the likely changes
in fisheries over the next twenty years. The impact of changes in
the fisheries sector on growth, poverty reduction, and environmental
sustainability in developing countries is also examined. (Available from the International Food Policy Research Institute
at http:
//www.ifpri.org ).
Lal, Padma.
“Economic Valuation of Mangroves and Decision-Making in the
Pacific.” 46 Ocean and Coastal
Management 823-844 (2003).
Lal examines
the role of economic valuation in mangrove conservation and the
efficient use of resources.
Whitehead,
John C., Timothy C. Haab, and George R. Parsons. “Economic
Effects of Pfiesteria.” 46 Ocean and Coastal Management
845-858 (2003).
Whitehead,
Haab, and Parsons examine the effects of information about Pfiesteria on consumer risk perceptions, seafood demand, and willingness
to pay for a mandatory seafood inspection program. Survey results
indicate that a fish kill announcement increases the perceived risks
of seafood and decreases the demand for seafood.
Hammer, Monica,
Cecilia M. Holmlund, and Maria Åqvist Almlöv. “Social-Ecological
Feedback Links for Ecosystem Management: A Case Study of Fisheries
in the Central Baltic Sea Archipelago.” 46 Ocean
and Coastal Management 527-545
(2003).
The Central
Baltic Sea Archipelago has undergone a transition from a region
relying mainly on a mixture of local natural resources to one dominated
by the recreational demands on nearby urban areas. This transition
has altered user patterns of fish resources. Hammer, Holmlund, and
Almlöv examine, applying an ecosystem management perspective,
the implications of changing social-economic feedback links for
sustainable coastal management in this region.
Suman, Daniel.
“Can You Eat a Mangrove?: Balancing Conservation and Development
in the Management of Mangrove Ecosystems in Cuba.” 16 Tulane
Environmental Law Journal 619- 652 (2003).
Mangroves
are found along approximately seventy percent of Cuba’s coastline.
Suman examines the mangrove-related legislation in Cuba and the
management strategies of Cuban authorities. Some of Cuba’s
accomplishments in natural resource law and policy are highlighted,
as well as obstacles to effective mangrove ecosystem management.
Brennan, Michael
J., et. al. “The Endangered Species Act: Thirty Years of Politics,
Money, and Science: Square Pegs and Round Holes: Application of
the ‘Best Scientific Data Available’ Standard in the
Endangered Species Act.” 16 Tulane Environmental Law Journal
387-444 (2003).
Although
agencies are required to use the “best scientific data available”
when making decisions under the Endangered Species Act (ESA), Congress
failed to provide guidance on when data meets this standard. Brennan
and co-authors discuss the role of scientific evidence in ESA implementation,
judicial attempts to apply the “best scientific data available”
standard, and recent legislative attempts to modify the standard.
Doremus, Holly,
and A. Dan Tarlock. “Fish, Farms, and the Clash of Cultures
in the Klamath Basin.” 30 Ecology Law Quarterly 279-350 (2003).
The Endangered
Species Act is often considered a catalyst, with the ability to
convince states and local populations to adjust to societal support
for environmental protection. Doremus and Tarlock examine this catalyst
strategy in the context of the events in the Klamath Basin during
2001, explore possible alternatives, and discuss lessons learned.
Patlis, Jason
M. “The Endangered Species Act: Thirty Years of Politics,
Money, and Science: Riders on the Storm, or Navigating the Crosswinds
of Appropriations and Administration of the Endangered Species Act:
A Play in Five Acts.” 16 Tulane Environmental Law Journal 257-
329 (2003).
Today, Endangered
Species Act listing decisions are driving solely by litigation and
the system’s survival depends on an obscure, bipartisan congressional
rider. After providing a primer on the legislative process, Patlis
examines how financially-challenged agencies, like the Fish and
Wildlife Service, are dealing with growing numbers of congressionally
and judicially imposed mandates.
Perron, Brian
J. “Just Another Goldfish Down the Toilet?: The Fate of Pacific
Salmon after Alsea Valley and
the De Facto Rescission of the 4(D) Rule.” 33 Environmental
Law 547-594 (2003).
On September
10, 2001, an Oregon federal judge in Alsea Valley Alliance v. Evans set aside NMFS’s 1998 listing of Oregon coast coho salmon
for failure to consider hatchery fish. As a result, almost all other
Pacific salmon and steelhead listings, as well as the 4(D) rule,
are currently in doubt. Perron examines the 4(D) rule, the Alsea
Valley decision, and the likely aftermath of the decision, which
the Bush Administration decided not to appeal.
Sorice, Michael
G., C. Scott Shafer, and David Scott. “Managing Endangered
Species within the Use/Preservation Paradox: Understanding and Defining
Harassment of the West Indian Manatee (Trichechus manatus).” 31 Coastal Management 319-338 (2003).
The interactions
between tourists and the endangered West Indian manatees in Crystal
River, Florida, where tourists can swim with the animals, raises
the issue of harassment, which is prohibited by law. Sorice, Shafer,
and Scott examine how the construct of harassment is defined and
applied to manatee encounters. A management framework is recommend
to establish best management practices.
Bagley, Paul
R. “Don’t Forget About the Fishermen: In the Battle
Over Fisheries Conservation and Management a Conservation Ethic
Has Trumped Economic Concerns of the Community.” 36 Suffolk
University Law Review 765-786 (2003).
In recent
challenges to federal fishery regulations, fishermen have argued
that the National Marine Fisheries Service (NMFS) improperly evaluated
the economic impacts of the regulations on their communities. Bagley
argues the NMFS and courts have favored conservation over economic
concerns and suggests an alternative definition of “fishing
community” which reflects the various fishing-related industries
present in a fishing community.
Brisman, Avi.
“A Less Tragic Commons?: Using Harvester and Processor Quotas
to Address Crab Overfishing.” 26 Seattle University Law Review 929-978
(2003).
The North
Pacific Fishery Management Council recently decided to replace the
existing License Limitation Program with a program that would assign
individual fishing quotas to harvesters and individual processing
quotas (IPQ) to processors. Brisman examines the legal issues surrounding
IPQs and the costs and benefits of crab rationalization.
Eagle, Josh,
and Barton H. Thompson, Jr. “Answering Lord Perry’s
Question: Dissecting Regulatory Overfishing.” 46 Ocean
and Coastal Management 649-679 (2003).
Eagle and
Thompson discuss the potential sources for regulatory overfishing,
defined as overfishing in individual fisheries. Case studies of
two federally managed, overfished fisheries in the United States
are examined and several suggestions are offered to improve fisheries
management and the overall management process.
Ebbin, Syma
A. “Swimming Upstream: Institutional Dimensions of Asymmetrical
Problems in Two Salmon Management Regimes.” 27 Marine
Policy 441-448 (2003).
Ebbin examines
the institutional dimensions of asymmetrical resource-based problems,
drawing results from case studies in Alaska and Washington involving
Pacific salmon management.
Eggert, Håkan,
and Anders Ellegård. “Fishery Control and Regulation
Compliance: A Case for Co-management in Swedish Commercial Fisheries.”
27 Marine Policy
525-533 (2003).
Eggert and
Ellegård present the results of a survey of regulatory compliance
and the attitudes of Swedish commercial fishermen to control and
restrictions.
Gable, F.
J. “A Practice-Based Coupling of the Precautionary Principle
to the Large Marine Ecosystem Fisheries Management Concept with
a Policy Orientation: The Northeast United States Continental Shelf
as a Case Example.” 31 Coastal
Management 435-456 (2003).
Gable examines
the interdisciplinary sustainable aspects of fisheries as part of
ocean management. Gable discusses the human-caused impacts and their
roles as modifiers of living marine resources and the management
and ecological aspects of fish stock populations as part of a large
marine ecosystem. An interdisciplinary policy orientation paradigm
for the sustainability of marine life is suggested.
Gray, Tim,
and Jenny Hatchard. “The 2002 Reform of the Common Fisheries
Policy’s System of Governance – Rhetoric or Reality?”
27 Marine Policy 545-554 (2003).
The European
Union’s 2002 Reform of the Common Fisheries Policy (CFP) was
supposed to overhaul the failing European fisheries system. Also
in 2002, the European Commission undertook a reappraisal of the
CFP to improve the CFP’s governance system through increased
stakeholder participation, transparency, and accountability. Gray
and Hatchard conclude that this attempt to improve governance was
more rhetorical than real.
Grynberg,
Roman. “WTO Fisheries Subsidies Negotiations: Implications
for Fisheries Access Arrangements and Sustainable Management.”
27 Marine Policy 499-511 (2003).
Grynberg
examines the WTO negotiations on fisheries subsidies and their impact
on coastal developing countries. Grynberg also suggests issues which
coastal developing nations should incorporate into their negotiating
positions and explores management strategies for the new subsidies.
Hernandez,
Alvaro, and Willett Kempton. “Changes in Fisheries Management
in Mexico: Effects of Increasing Scientific Input and Public Participation.”
46 Ocean and Coastal Management 507-526
(2003).
In 1995,
faced with fisheries management problems, over-capitalization, monopolies,
and social conflicts caused by a national policy of promoting accelerated
fishing effort, Mexican officials began implementing structural
changes in management, science, and enforcement institutions. Hernandez
and Kempton analyze the changing roles of these institutions during
the 1990’s, with particular attention to the introduction
of science-based categorization of fisheries status and public participation.
Islam, Md.
Shahidul. “Perspectives of the Coastal and Marine Fisheries
of the Bay of Bengal, Bangladesh.” 46 Ocean and Coastal Management 763-796
(2003).
The Bay of
Bengal is one of the most highly productive areas in the world,
but one of the most poorly studied. Islam details the coastal and
marine fisheries of the Bay of Bengal, contributing to the available
information base and identifying future management and research
needs.
Kirke, Brian.
“Enhancing Fish Stocks with Wave-Powered Artificial Upwelling.”
46 Ocean and Coastal Management 901-915
(2003).
Kirke argues
that fisheries productivity can be enhanced by mimicking natural
upwellings through the mechanical pumping of nutrient-rich deep
ocean water to the surface. Kirke proposes a demonstration project
involving the use of a simple wave-powered pump and explores possible
solutions to the problems of dilution and the plunging of dense,
nutrient-rich deep ocean water.
Kitts, Andrew
W., and Steven F. Edwards. “Cooperatives in U.S. Fisheries:
Realizing the Potential of the Fishermen’s Collective Marketing
Act.” 27 Marine Policy 357-366 (2003).
The success
of recent quota-based harvesting techniques highlight the potential
for extensive cooperative arrangements under the Fishermen’s
Collective Marketing Act of 1934. Kitts and Edwards argue that with
fisheries increasingly managed by quotas and limited access, fishery
cooperatives will be in a better position to share harvest capacity,
reduce cost, and negotiate prices.
McGaw, Richard.
“Aboriginal Fisheries Policy in Atlantic Canada.” 27
Marine Policy 417-424 (2003).
Following
a 1999 Canadian Supreme Court ruling that the aboriginals of Atlantic
Canada had a right to maintain a livelihood through fishing, Canada
implemented a plan to provide the aboriginals with access to the
fishery. McGaw reviews the implementation of this plan.
Mikalsen,
Knut H., and Svein Jentoft. “Limits to Participation? On the
History, Structure, and Reform of Norwegian Fisheries Management.”
27 Marine Policy 397-407 (2003).
The ultimate
authority in Norwegian fisheries management lies with the central
government, although there is an element of power sharing through
corporatist arrangements. Mikalsen and Jentoft examine the history
of Norwegian fisheries management and explore the challenges surrounding
institutional reform.
Montero Llàcer,
Francisco J. “Open Registers: Past, Present, and Future.”
27 Marine Policy 513-523 (2003).
For centuries,
states have registered their vessels under flags of other states
to overcome restrictions and increase profits. Montero Llàcer
explores the open register system and proposes specific actions
to eradicate substandard registers.
Nichols, Lindsay
J. “The NMFS’s National Standard Guidelines: Why Judicial
Deference May Be Inevitable.” 91 California
Law Review 1375-1416 (2003).
In a recent
opinion, the U.S. Supreme Court held that an agency’s interpretation
of a statute is entitled to deference only if the interpretation
was pursuant to congressionally delegated authority. Nichols examines
the impact of this decision on judicial deference to agency guidelines
and other documents, focusing specifically on the National Standard
Guidelines promulgated by the National Marine Fisheries Service.
Nielsen, Jesper
Raakjær. “An Analytical Framework for Studying: Compliance
and Legitimacy in Fisheries Management.” 27 Marine
Policy 425-432 (2003).
Nielsen develops
an analytical framework, based on hypotheses from economic and sociological
theories, for analyzing compliance and legitimacy in fisheries management.
Nielsen, Jesper
Raakjær, and Christoph Mathiesen. “Important Factors
Influencing Rule Compliance in Fisheries: Lessons From Denmark.”
27 Marine Policy
409-416 (2003).
Nielsen and
Mathiesen present the results of a study of the acceptance of Danish
fishers of imposed fisheries regulations and their respect for the
management system. Three Danish fisheries were surveyed: the Baltic
Sea cod fishery, the Kattegat demersal and Nephrops fishery, and the North
Sea fishery for non-human consumption species.
Noble, Tim.
“Co-operating in Fisheries Management: Trials and Tribulations
in Scotland.” 27 Marine Policy 433-439 (2003).
Under the
U.K. Sea Fisheries (Shellfish) Act of 1967, the Minister may devolve
inshore fisheries management to local cooperative groups. Shetland
fishermen in Scotland successfully applied for devolution in 1999,
but an 2001 application by Orkney fishermen failed. Nobel examines
the circumstances of the Orkney failure and speculates on the future
of this policy.
Reid, Christopher,
et. al. “An Analysis of Fishing Capacity in the Western and
Central Pacific Ocean Tuna Fishery and Management Implications.”
27 Marine Policy
449-469 (2003).
Recently,
concerns have arisen regarding an increase in catch capacity of
the purse seine fishery in the Western and Central Pacific Ocean
due to an increase in the catch of canning grade tuna. Reid and
co-authors used data envelopment analysis to assess the current
technical efficiency of the purse seine fleet and its catch capacity
and examine the implications of limiting days at sea.
Santora, Christine.
“Management of Turtle Bycatch: Can Endangered Species Be Protected
While Minimizing Socioeconomic Impacts?” 31 Coastal
Management 423-434 (2003).
Santora analyzed
turtle-bycatch management issues in a small-scale gillnet fishery
targeting flounder in Pamlico Sound, North Carolina to determine
the feasibility of achieving dual objectives: protection of sea
turtles and minimization of social and economic impacts. Santora
also discusses the possibility of implementing solutions reflecting
multiple values while operating under the Endangered Species Act.
Standal, Dag.
“Fishing the Last Frontier – Controversies in the Regulation
of Shrimp Trawling in the High Arctic.” 27 Marine
Policy 375-388 (2003).
Shrimp trawling
fisheries in the Norwegian Exclusive Economic Zone and in the Fisheries
Protection Zone around Svalbard are not regulated through total
allowable catch quotas or vessel restrictions. In recent years,
fishery managers have suggested quotas to address the massive increase
in catch capacity. Standal examines the forces behind the increase
in catch capacity and whether the existing system, with its lack
of quotas, is sufficient to manage the increase.
Sutinen, Jon
G., and Robert J. Johnston. “Angling Management Organizations:
Integrating the Recreational Sector into Fishery Management.”
27 Marine Policy
471-487 (2003).
Sutinen and
Johnston examine methods to reduce conflicts and improve the value
and sustainability of marine recreational fisheries. One approach
to fully integrate the recreational sector into fisheries management
proposed by Sutinen and Johnston involves the use of angling management
organizations, community-based organizations designed to strengthen
resource stewardship, alleviate management conflicts, and produce
greater long-term net economic benefits.
Surís-Regueiro,
Juan C., Manuel M. Varela-Lafuente, and Carlos Iglesias-Malvido.
“Effectiveness of the Structural Fisheries Policy in the European
Union.” 27 Marine Policy 535-544 (2003).
Surís-Regueiro,
Varela-Lafuente, and Iglesias-Malvido analyze the effectiveness
of the community structural policy in the fisheries sector of the
European Union. The relative level of compliance with objectives,
such as the reduction of fleets, was compared with the mechanisms
which have been implemented to achieve those objectives.
Trondsen,
Torbjorn, Kjetil Helstad, and James A. Young. “Market-oriented
Regional Fisheries Management – An Analysis of Four Fish Regions
in the North Atlantic.” 46 Ocean and Coastal Management 917-941
(2003).
Trondsen,
Helstad, and Young analyzed exchange methods and ex-vessel prices
in four North Atlantic Regions, including Iceland, Norway, and Scotland,
to determine the influence of exchange methods on ex-vessel prices.
The authors explore the implication of their findings on regional
resource and coastal management.
Ward, Trevor,
and Eddie Hegerl. Marine Protected Areas in Ecosystem-Based Management
of Fisheries (2003).
Ward and
Hegerl, in a report prepared for the Australian Department of Environment
and Heritage, argue that MPAs can be designed to achieve a “double
payoff” – benefits to both fisheries and conservation.
Successful dual-objective MPAs require strong cooperation between
conservation and fisheries agencies, analysis and documentation
of the costs and benefits, and stakeholder involvement. Ward and
Hegerl discuss the use of marine reserves in fisheries management
and identify mechanisms for the identification and implementation
of dual-objective MPAs. (Available from
the ADEH at http:
//www.deh.gov.au/coasts/mpa/wpc/fisheries.html
).
Whitmarsh,
David, et. al. “The Economic Sustainability of Artisanal Fisheries:
the Case of the Trawl Ban in the Gulf of Castellammare, NW Sicily.”
27 Marine Policy
489-497 (2003).
The trawl
ban in the Gulf of Castellammare includes a designated fishing area
from which non-artisanal vessel are excluded. Whitmarsh and co-authors
examine the economic sustainability of the artisanal fishery operating
within the protected area, the potential consequences of lifting
the trawl ban, and the fishermen’s attitudes towards the ban.
Kunich, John
Charles. “World Heritage in Danger in the Hot Spots.”
78 Indiana Law Journal
619-658 (2003).
No comprehensive,
enforceable legal mechanism, domestic or international, exists to
protect global biodiversity. Kunich evaluates the potential of the
World Heritage Convention to become an effective tool to safeguard
global hot spots.
Kwiatkowsk,
Barbara. “The Southern Bluefin Tuna Arbitral Tribunal Did
Get It Right: A Commentary and Reply to the Article by David A.
Colson and Dr. Peggy Hoyle.” 34 Ocean Development and International Law 369-395 (2003).
This contribution
is a reply to and a commentary on the article by David A. Colson
and Dr. Peggy Hoyle, “Satisfying the Procedural Prerequisites
to the Compulsory Dispute Settlement Mechanisms of the 1982 Law
of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get
It Right?” 34(1) Ocean Development
& International Law 59-82 (2003).
Colson and Hoyle took the view that Southern Bluefin Tuna Tribunal
did not reach the correct answer. Kwiatkowsk’s survey of the
Southern Bluefin Tuna and the Mox Plant cases, in light of the doctrine
of procedural and substantive parallelism between the umbrella UN
Law of the Sea Convention and its numerous implementing special
treaties covered by Articles 281-282, leads her to conclude that
the Southern Bluefin Tuna Arbitral Tribunal did get it right. (Abstract
courtesy of Ocean Development and International Law).
Talitman,
Dorit, Alon Tal, and Shmuel Brenner. “The Devil is in the
Details: Increasing International Law’s Influence on Domestic
Environmental Performance – The Case of Israel and the Mediterranean
Sea.” 11 New York University Environmental
Law Journal 414-478 (2003).
The Convention
for the Protection of the Mediterranean Sea Against Pollution (the
“Barcelona Convention”) was adopted in 1976. Israel
was an enthusiastic participant in the negotiations, at a time when
the nation was generally isolated from the international community
due to the political climate in the Middle East. Talitman, Tal,
and Brenner evaluate Israel’s marine pollution enforcement
system within the context of its ratification of the Barcelona Convention
and its protocol on land-based sources.
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