Regional ocean governance: The perils of multiple-use management and the promise of agency diversity

Duke Environmental Law and Policy Forum

Volumn 16, Issue 2, 2006, Pages 143-177

  Eagle, Josh ^a  

^a UNIVERSITY OF SOUTH CAROLINA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL MANAGEMENT; GOVERNANCE APPROACH; MULTIPLE USE; OCEAN;

EID: 33745262363     PISSN: 10643958     EISSN: 10643958     Source Type: Journal    
DOI: None     Document Type: Article

References (279)

1. U.S. COMM'N ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST CENTURY: FINAL REPORT OF THE U.S. COMMISSION ON OCEAN POLICY (2004) [hereinafter USCOP REPORT], available at http://www.oceancommission.gov/documents/ full_color_rpt/000_ocean_full_report.pdf;
2. PEW OCEANS COMM'N, AMERICA'S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE (2003) [hereinafter PEW REPORT], available at http://www.pewtrusts.org/pdf/env_pew_oceans_final_report.pdf.
3. President Bush appointed members of the U.S. Commission on Ocean Policy early in his first term, pursuant to the Oceans Act of 2000, which authorized creation of the commission. Oceans Act of 2000, Pub. L. No. 106-256, 114 Stat. 644 (2000). The charge to the commission included the assessment of policies on living resources, nonliving resources, navigation, and national security. Members of the commission included: Admiral James D. Watkins (Ret.), Robert Ballard (professor of oceanography, University of Rhode Island), Ted A. Beattie (president and Chief Executive Officer ("CEO") of Shedd Aquarium), Lillian Borrone (chair of the board of Eno Transportation Foundation), James M. Coleman (professor of coastal studies, Louisiana State University), Ann D'Amato (chief of staff for Los Angeles City Attorney), Lawrence Dickerson (president of Diamond Offshore Drilling, Inc.), Vice Admiral Paul G. Gaffney, II (Ret.) (president of Monmouth University), Marc J. Hershman (professor of marine policy, University of Washington), Paul L. Kelly (senior vice-president of Rowan Companies, offshore drilling supplier), Christopher L. Koch (president and CEO of World Shipping Council), Frank Muller-Karger (professor of biological oceanography, University of South Florida), Edward B. Rasmuson (president of the Rasmuson Foundation), Andrew A. Rosenberg (professor, University of New Hampshire), William D. Ruckelshaus (strategic director of the Madrona Venture Group and chairman of the board of the World Resources Institute), and Paul Sandifer (senior scientist for the National Oceanic and Atmospheric Administration's National Centers for Coastal Ocean Science). of 2000, which authorized creation of the commission. Oceans Act of 2000, Pub. L. No. 106-256, The charge to the commission included the assessment of policies on living resources, nonliving resources, navigation, and national security. Members of the commission included: Admiral James D. Watkins (Ret.), Robert Ballard (professor of oceanography, University of Rhode Island), Ted A. Beattie (president and Chief Executive Officer ("CEO") of Shedd Aquarium), Lillian Borrone (chair of the board of Eno Transportation Foundation), James M. Coleman (professor of coastal studies, Louisiana State University), Ann D'Amato (chief of staff for Los Angeles City Attorney), Lawrence Dickerson (president of Diamond Offshore Drilling, Inc.), Vice Admiral Paul G. Gaffney, II (Ret.) (president of Monmouth University), Marc J. Hershman (professor of marine policy, University of Washington), Paul L. Kelly (senior vice-president of Rowan Companies, offshore drilling supplier), Christopher L. Koch (president and CEO of World Shipping Council), Frank Muller-Karger (professor of biological oceanography, University of South Florida), Edward B. Rasmuson (president of the Rasmuson Foundation), Andrew A. Rosenberg (professor, University of New Hampshire), William D. Ruckelshaus (strategic director of the Madrona Venture Group and chairman of the board of the World Resources Institute), and Paul Sandifer (senior scientist for the National Oceanic and Atmospheric Administration's National Centers for Coastal Ocean Science).
4. The Pew Charitable Trusts formed and funded the Pew Oceans Commission in 2000. Members of the commission included: Christine Todd Whitman, Leon Panetta, John Adams (president of Natural Resources Defense Council), Eileen Claussen (president of Pew Center on Global Climate Change), Carlotta Leon Guerrero (co-director of the Ayuda Foundation, a nonprofit health care organization in Guam), Mike Hayden (Secretary of Kansas Department of Wildlife and Parks), Geoffrey Heal (professor of economics and finance, Columbia University), Charles Kennel (director of Scripps Institute for Oceanography), Tony Knowles (then-Governor of Alaska), Jane Lubchenco (professor of marine biology, Oregon State University), Julie Packard (founder and executive director of the Monterey Bay Aquarium and vice-chair of the David and Lucile Packard Foundation), Pietro Parravano (president of Pacific Coast Federation of Fishermen's Associations), George Pataki (Governor of New York), Joseph P. Riley, Jr. (Mayor of Charleston, South Carolina), David Rockefeller, Jr.(director of Rockefeller Co., Inc.), Vice Admiral Roger T. Rufe, Jr. (Ret.) (president and CEO of the Ocean Conservancy), Kathryn D. Sullivan (president and CEO of COSI, a hands-on science center), Marilyn Ware (chairman of the board of the American Water Works Company), and Patten D. White (CEO of the Maine Lobstermen's Association). The Pew Oceans Commission focused most of its attention on the status and management of the ocean's living environment. So, for example, it commissioned special reports on ocean pollution, fisheries management, aquaculture, and invasive species. These reports are available at www.pewtrusts.com (last visited Feb. 19, 2006).
5. USCOP REPORT, supra note 1, at 20, 40;
6. PEW REPORT, supra note 1, at 2-9.
7. See NAT'L OCEANIC & ATMOSPHERIC ADMIN., STATUS OF UNITED STATES FISHERIES (2004), available at www.nmfs.noaa.gov/sfa/statusoffisheries/ SOSmain.htm.
8. That report indicates that in 2004, about twenty percent of major stocks in American federal waters-and twenty-eight percent of all stocks-could be classified as overfished. Major stocks are defined as those supporting more than 200,000 pounds of catches annually; combined, these represent about ninety-nine percent of all U.S. catches. Id.
9. Although a slight oversimplification, it is useful to conceptualize a population of wild fish as a capital asset. A "sustainable" rate of fishing "spends" only the interest generated by the asset, while "overfishing" mines the capital. While mining produces high revenues for a short time, it inevitably results in long-term catch levels that are lower than what could have been achieved by maintaining the capital at an optimal level. So, for example, a 1999 government study indicated that U.S. landings were at that time about thirty to forty percent less than could be produced, on a continuing basis, by healthy fisheries. NAT'L OCEANIC & ATMOSPHERIC ADMIN., OUR LIVING OCEANS 8 (1999).
10. Those fishermen who are active in the early, mining phase of a fishery will benefit financially from overfishing, but those who begin fishing after this period will not. Similarly, while consumers will benefit in the short-term from lower fish prices, over the long-term they will pay higher than needed prices and have fewer choices of affordable seafood. See generally Suzanne IUDICELLO ET AL., FISH, MARKETS, and FISHERMEN: the ECONOMICS of OVERFISHING (1999).
11. USCOP REPORT, supra note 1. at 32;
12. PEW REPORT, supra note 1, at 41-44.
13. J.A. Musick et al., Marine, Estuarine, and Diadromous Fish Stocks at Risk of Extinction in North America (Exclusive of Pacific Salmonias), 25 FISHERIES 6 (2000);
14. Graeme C. Hays et al., Endangered Species: Pan-Atlantic Leatherback Turtle Movements, 429 NATURE 522 (2004).
15. Les Watling & Elliott A. Norse, Effects of Mobile Fishing Gear on Marine Benthos, 12 CONSERVATION BIOLOGY 1178 (1998);
16. Les Watling & Elliott A. Norse, Disturbance of the Seabed by Mobile Fishing Gear: A Comparison to Forest Clearcutting, 12 CONSERVATION BIOLOGY 1180 (1998).
17. See generally LANCE E. MORGAN & RATANA CHUENPAGDEE, SHIFTING GEARS: ADDRESSING THE COLLATERAL IMPACTS OF FISHING METHODS IN U.S. WATERS (2003).
18. NAT'L ACAD. OF SCIS., THE DECLINE OF THE STELLER SEA LION IN ALASKAN WATERS: UNTANGLING FOOD WEBS AND FISHING NETS (2003);
19. Daniel Pauly et al., Fishing Down Marine Food Webs, 279 SCIENCE 860 (1998).
20. Jeffrey A. Hutchings & John D. Reynolds, Marine Fish Population Collapses: Consequences for Recovery and Extinction Risk, 54 BIOSCIENCE 297 (2004);
21. Jeremy B.C. Jackson et al., Historical Overfishing and the Recent Collapse of Coastal Ecosystems, 293 SCIENCE 629 (2001);
22. Jeffrey A. Hutchings, Influence of Population Decline, Fishing, and Spawner Variability on the Recovery of Marine Fishes, 59 J. FISH BIOLOGY 306 (2001);
23. Jeffrey A. Hutchings, Collapse and Recovery of Marine Fishes, 406 NATURE 882 (2000).
24. MILLENNIUM ECOSYSTEM ASSESSMENT, ECOSYSTEMS AND HUMAN WELL-BEING: CURRENT STATE AND TRENDS 480-81 (2005);
25. see also Andrew Balmford et al., Economic Reasons for Conserving Wild Nature, 297 SCIENCE 950 (2002);
26. Robert Costanza et al., Principles for Sustainable Governance of the Oceans, 281 SCIENCE 198 (1998);
27. Robert Costanza et al., The Value of the World's Ecosystem Services and Natural Capital, 387 NATURE 253 (1997).
28. It would be accurate to describe fishermen as the sole culprits in fishery collapse if the "commons" was unregulated. Garrett Hardin, Tragedy of the Commons, 162 SCIENCE 1243 (1968).
29. However, American fisheries-and the great majority of fisheries in developed countries-can no longer accurately be described as commons. All substantial American fisheries are subject to extensive regulation and, generally speaking, new participants cannot freely enter. See generally MICHAEL L. WEBER, FROM ABUNDANCE TO SCARCITY: A HISTORY OF U.S. MARINE FISHERIES POLICY (2002).
30. Jackson et al., supra note 8.
31. USCOP REPORT, supra note 1, at 20.
32. Fisheries in American federal waters (three to two-hundred nautical miles from the coast) are regulated under the Magnuson-Stevens Fishery Conservation and Management Act by eight Regional Fishery Management Councils, operating under authority of the Secretary of Commerce. Magnuson-Stevens Fishery Conservation and Management Act § 302, 16 U.S.C. § 1852 (2000) (States have jurisdiction from zero to three miles, although state action can in some cases be preempted by council action.
33. Submerged Lands Act, 43 U.S.C. § 1301 (2000);
34. Magnuson-Stevens Fishery Conservation and Management Act § 306). Conservation and Management Act § 306).
35. The Regional Fishery Management Councils write detailed plans and rules governing fishing activities within their respective jurisdictions. See generally JOSH EAGLE ET AL., TAKING STOCK OF THE REGIONAL FISHERY MANAGEMENT COUNCILS (2003).
36. USCOP REPORT, supra note 1, at 52-55;
37. PEW REPORT, supra note 1, at 26-28.
38. For an empirical study of the mechanics of regulatory failure, see Josh Eagle & Barton H. Thompson, Jr., Answering Lord Perry's Question: Dissecting Regulatory Overfishing, 46 OCEAN & COASTAL MGMT. 649 (2003).
39. See also Timothy Hennessey & Michael Healey, Ludwig's Ratchet and the Collapse of New England Groundfish Stocks, 28 COASTAL MGMT. 187 (2000).
40. USCOP REPORT, supra note l, at 472-522;
41. PEW REPORT, supra note 1, at 102-16.
42. The chapters in the U.S. Commission's report focusing on regional governance are Chapter Five, "Advancing a Regional Approach," and Chapter Six, "Coordinating Management in U.S. Waters." USCOP REPORT, supra note 1, at 86-106.
43. The relevant chapter in the Pew Commission's report is Chapter Two, "Governance for Sustainable Seas." PEW REPORT, supra note 1, at 26-34. Valuable information on the context of these recommendations can be gleaned from other chapters of the reports as well.
44. PEW REPORT, supra note 1, at 28. The word "comprehensive" appears more than 200 times in the U.S. Commission's report, or about once every third page.
45. The U.S. Commission calls its councils "Regional Ocean Councils," while the Pew Commission uses the term "Regional Ocean Ecosystem Councils." USCOP REPORT, supra note 1, at 90;
46. PEW REPORT, supra note 1, at 103.
47. See, e.g., J.B. Ruhl et al., Proposal for a Model State Watershed Management Act, 33 ENVTL. L. 929, 934-35 (2003);
48. Alistair M. Ulph, Harmonization and Optimal Environmental Policy in a Federal System with Asymmetric Information, 39 J. ENVTL. ECON. & MGMT. 224 (2000);
49. JAMES SALZMAN & BARTON H. THOMPSON, JR., ENVIRONMENTAL LAW AND POLICY (2004).
50. As an example of a major management failure, the Pew Report cites the demise of the once economically important West Coast rockfish (Sebastes genus) fisheries. PEW REPORT, supra note 1, at 2.
51. Fishing has reduced many of these species' populations to the point where they can no longer support any catch whatsoever. LOVE ET AL., THE ROCKFISHES OF THE NORTHEAST PACIFIC 71-91 (2002).
52. Throughout their lives, rockfish migrate very little; their management is an intrajurisdictional challenge. LOVE ET AL., supra, at 51-56.
53. Magnuson-Stevens Fishery Conservation and Management Act § 302, 16 U.S.C. § 1852 (2000).
54. For a complete listing of overfished U.S. fisheries, see NAT'L OCEANIC & ATMOSPHERIC ADMIN., supra note 2. The vast majority of overfished fisheries are managed by a single FMC, although a few are managed jointly by two FMCs.
55. Id. In cases where fish migrate through state and federal waters, but most of the fishing activity occurs in federal waters, the FMCs manage the fishery.
56. Magnuson-Stevens Fishery Conservation and Management Act § 306, 16 U.S.C. § 1856 (2000).
57. The Magnuson-Stevens Act is a multiple-use, balancing statute. "National Standard One," the first of ten national standards in the Act, for example, provides that "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Magnuson-Stevens Fishery Conservation and Management Act § 301(a)(1), 16 U.S.C. § 1851(a)(1) (2000). At the same time, "National Standard Eight" states that: Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities. cstates that: Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities. Magnuson-Stevens Fishery Conservation and Management Act § 301 (a)(1), 1851(a)(1) At the same time, "National Standard Eight" states that: Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities. cstates that: Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities
58. Id. § 301(a)(8).
59. In addition to requiring the managers and the Regional Fishery Management Councils to balance between conservation and the needs of the industry, the Magnuson-Stevens Act also mandates that the councils balance between the needs of various sectors of the fishing industry, such as commercial and recreational fishermen. Id. § 301(a)(4).
60. "Dominant-use" agencies are agencies that implement "dominant-use" statutes. A dominant-use statute is a law in which the legislature has given an agency explicit directions to presumptively or absolutely prioritize one use, or a small set of consistent uses, above all others. See. Part III, infra.
61. For example, areas closed to fishing, known as marine reserves, provide significant ecological benefits. See, e.g., T.R. McClanahan & B. Kaunda-Arara, Fishery Recovery in a Coral-reef Marine Park and its Effect on the Adjacent Fishery, 10 CONSERVATION BIOLOGY 1187 (1996);
62. J. Alder, Have Tropical Marine Protected Areas Worked? An Initial Analysis of their Success, 24 COASTAL MANAGEMENT 97-114 (1996);
63. L. Wantiez et al., Effects of Marine Reserves on Coral Reef Fish Communities from Five Islands in New Caledonia, 16 CORAL REEFS 215 (1997);
64. S.J. Hall, Closed Areas for Fisheries Management-The Case Consolidates, 13 TRENDS ECOLOGY & EVOLUTION 297 (1998).
65. Karkkainen explains how municipal zoning, through the spatial distribution of political power across the urban landscape, serves a similar function. Bradley C. Karkkainen, Zoning: A Reply to the Critics, 10 J. LAND USE & ENVTL. L. 45 (1994).
66. "Rather than conceiving of zoning as consisting of legislative-type rules, we should understand zoning as establishing mere presumptions or baseline rules that precipitate and provide a convenient substantive starting point for negotiations between developers and representatives of neighborhood interests." Id. at 81.
67. See also Carol Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 CAL. L. REV. 837 (1983);
68. Eric H. Steele, Participation and Rules-The Functions of Zoning, 11 AM. B. FOUND. RES. J. 709, 713 (1986) ("[I]n giving voice to the community's interests and creating a forum in which the community's will is empowered and can appropriately influence policy affecting its environment, zoning has the effect of fostering both the implicit strengthening of the bonds of community and explicit community organizing.").
69. Karkkainen, supra note 25, at 81.
70. Put differently, agency diversity "tries to reduce the dangers of factionalism by disaggregating the polity." Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1127 (2005).
71. See generally Harry M. Markowitz, Foundation of Portfolio Theory, 46 J. FIN. 469 (1991).
72. See Gerken, supra note 27.
73. Ruhl et al., supra note 18, at 934-35;
74. SALZMAN & THOMPSON, supra note 18.
75. See Part IV, infra.
76. USCOP REPORT, supra note 1, at 52-55;
77. PEW REPORT, supra note 2, at 26-28.
78. PEW REPORT, supra note 1, at 26.
79. USCOP REPORT, supra note 1, at 86.
80. The concept of "Exclusive Economic Zones" originates in the United Nations Convention on the Law of the Sea. United Nations Convention on the Law of the Sea art. 55, Dec. 10, 1982, 1833 U.N.T.S. 397.
81. These zones extend 200 nautical miles into ocean waters from the shores of coastal nations. Id.
82. Under the Law of the Sea, coastal nations have certain rights and obligations in these waters, including the right to exclusive management authority over living marine resources. Id. art. 56.
83. Although the United States is not a party to the Law of Sea treaty, it announced its claim to the equivalent of an Exclusive Economic Zone in 1976 in the original Fishery Conservation and Management Act, and again in 1983 in a presidential proclamation issued by President Ronald Reagan. Magnuson-Stevens Fishery Conservation and Management Act § 111, 16 U.S.C. § 1811 (2000); Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983).
84. 16 U.S.C. §§ 1801-1883 (2000).
85. 16 U.S.C. §§ 1361-1421 (2000).
86. 16 U.S.C. §§ 1531-1544 (2000).
87. 43 U.S.C. §§ 1331-1356 (2000).
88. 33 U.S.C. §§ 1251-1387 (2000).
89. USCOP REPORT, supra note 1, at 86.
90. Wendy E. Wagner, Restoring Polluted Waters with Public Values, 25 WM. & MARY ENVTL. L. & POL'Y REV. 429, 451-58 (2000);
91. Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 412, 423 (2005).
92. Wagner, supra note 42.
93. Id.
94. See Section IV, infra.
95. William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1 (2003).
96. Id. at 30-36.
97. For an example of the effects of overlapping agency jurisdiction on regulation, see James R. Weiss & Martin L. Stern, Serving Two Masters: The Dual Jurisdiction of the FCC and the Justice Department Over Telecommunications Transactions, 6 COMM. L. CONSPECTUS 101 (1998).
98. Buzbee, supra note 46.
99. Id.
100. J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L.J. 757 (2003);
101. Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 HARV. ENVTL. L. REV. 297 (1999).
102. Ruhl & Salzman, supra note 50.
103. Id.;
104. see also Eagle & Thompson, supra note 13.
105. USCOP REPORT, supra note 1, at 1.
106. See also Hanna J. Cortner et al., Institutions Matter: The Need to Address the Institutional Challenges of Ecosystem Management, 40 LANDSCAPE & URB. PLANNING 159, 162 (1998).
107. Ruhl et al., supra note 18, at 934-35;
108. SALZMAN & THOMPSON, supra note 18.
109. See generally ROBERT H. MNOOKIN & LEE ROSS, BARRIERS TO CONFLICT RESOLUTION (1999).
110. See Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. LEGAL STUD. 593, 605, 605-06 (1980).
111. NAT'L ACAD. OF SCIS., MANAGING THE COLUMBIA RIVER: INSTREAM FLOWS, WATER WITHDRAWALS, AND SALMON SURVIVAL (2004).
112. PEW REPORT, supra note 1, at 28.
113. USCOP REPORT, supra note 1, at 4.
114. Id. at 90.
115. The USCOP report provides: Since the 1960s, scientists have developed and refined the concept of "large marine ecosystems," ("LMEs"). These regions divide the ocean into large functional units based on shared bathymetry, hydrography, productivity, and populations. LMEs encompass areas from river basins and estuaries to the outer edges of continental shelves and seaward margins of coastal current systems.
116. Id. at 86.
117. Id.
118. Id.
119. Id. at 4.
120. Id. at 86.
121. Id.
122. See supra note 12 and accompanying text.
123. USCOP REPORT, supra note 1, at 90.
124. Evidence of this commission's desire for "institutional melding" can be found in the guiding principles set out in a section of the commission's report entitled "Setting the Nation's Sights": Ecosystem-based Management: U.S. ocean and coastal resources should be managed to reflect the relationships among all ecosystem components, including humans and nonhuman species and the environments in which they live. Applying this principle will require defining relevant geographic management areas based on ecosystem, rather than political, boundaries. Multiple Use Management: The many potentially beneficial uses of ocean and coastal resources should be acknowledged and managed in away that balances competing uses while preserving and protecting the overall integrity of the ocean and coastal environments. Understandable Laws and Clear Decisions: Laws governing uses of ocean and coastal resources should be clear, coordinated, and accessible to the nation's citizens to facilitate compliance. Policy decisions and the reasoning behind them should also be clear and available to all interested parties.
125. Id. at 9.
126. Id. at 10.
127. Id. at 8.
128. See generally PEW REPORT, supra note 1, at 26-34.
129. Id. at 33.
130. Id. at 103.
131. Id.
132. Id.
133. Id. at 33.
134. "Regional ocean councils should leave day-to-day management to the appropriate authorities. For example, federal fisheries management would remain the purview of the National Marine Fisheries Service [NOAA Fisheries] and the appropriate regional fishery management council." Id. at 104.
135. Id. at 105.
136. Id.
137. Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 (2000).
138. PEW REPORT, supra note 1, at 105. Under the Coastal Zone Management Act of 1972, states can object to proposed activities in federal waters that are not "consistent to the maximum extent practicable with" coastal management plans that those states have developed for activities in state waters. 16 U.S.C. § 1456(c)(1)(A).
139. U.S.C. § 1456(c)(1)(A).
140. Wagner, supra note 42.
141. Farber, supra note 50, at 320-21.
142. Buzbee, supra note 46.
143. Cortner et al., supra note 53, at 161.
144. See Farber, supra note 50, at 317.
145. Jeffrey R. Vincent & Clark S. Binkley, Efficient Multiple-Use Forestry May Require Land-Use Specialization, 69 LAND ECON. 370 (1993).
146. Magnuson-Stevens Fishery Conservation and Management Act § 301(a)(1), 16 U.S.C. § 1851(a)(1) (2000);
147. U.S.C. § 1802 (28).
148. See, e.g., William G. Clark, Groundfish Exploitation Rates Based On Life History Parameters, 48 CAN. J. AQUATIC SCI. 734 (1991) (twenty to sixty percent);
149. Joan Roughgarden, How to Manage Fisheries, 8 ECOLOGICAL APPLICATIONS 160 (1998) (seventy-five percent).
150. F.3d 747 (D.C. Cir. 2000).
151. The court found that: T]he adopted quota guaranteed only an 18% probability of achieving the principal conservation goal of the summer flounder fishery management plan. The Service offered neither analysis nor data to support its claim that the two additional measures aside from the quota would increase that assurance beyond the at-least-50% likelihood required by statute and regulation.
152. In a 2000 online newsletter, the Pacific Marine Conservation Council claimed that "[a] recent decision by the US Court of Appeals (DC Circuit)...sets important precedents." Victory for an Atlantic Flounder has Implications out West, PMCC Q. (Pac. Marine Conservation Council, Arcata, Cal.), Aug. 2000, at 4, available at http://www.pmcc.org/ newsletters/newsletteraugust.htm.
153. For an introduction to theories of concentrated and diffuse, or "latent" groups, see MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION ch. 1 (1971). Schroeder provides a good summary of Olson's theories: Arguing that most people would approach the decision to contribute or not by weighing the costs and benefits, Olson predicted that groups would be hard to organize when the group activity promised to produce benefits that were spread out among beneficiaries in amounts that are small compared to the costs of securing them. Each individual would see that her contribution to the group effort was not going to affect her own personal fortunes-either others would contribute enough so that she could free-ride on their efforts or others would not contribute and the minimal amount she was willing to contribute would not put the effort over the top. In either case, no benefits to her would be produced by her contribution, and hence it would be irrational to join in the group effort. Groups whose benefits were diffuse in this sense were labeled "latent" groups by Olson because the shared group benefit was likely to remain unrealized. In contrast, groups that contain members with more concentrated benefits would be more likely to organize, either because a single member has enough at stake in the benefit to underwrite individually the costs of securing the group benefit, or because a subgroup of members within the larger group is small enough so that they can 'effectively agree to pool sufficient resources to produce the benefit. Compared to latent groups, such groups as these have a comparative advantage with respect to their ability to organize to advance group interests.
154. Christopher H. Schroeder, Rational Choice Versus Republican Moment-Explanations for Environmental Laws, 1969-73, 9 DUKE ENVTL. L. & POL'Y F. 29, 33-34 (1998). Schroeder also provides a good synopsis of criticism of Olson's theories.
155. OLSON, supra note 96.
156. "Agency capture" theory suggests that a regulatory agency can be commandeered by the regulated community to serve its own purposes. See MARVER H. BERNSTEIN, REGULATING BUSINESS BY INDEPENDENT COMMISSION (1955).
157. See, e.g., JOHN E. CHUBB, INTEREST GROUPS AND THE BUREAUCRACY 264 (1983) ("Notwithstanding the many changes in the structure and political environment of the bureaucracy, the energy agencies cooperated most with interest groups that had the expert personnel and the financial resources to contribute to these slow and technical policymaking processes.");
158. Scott R. Furlong, Political Influence on the Bureaucracy: The Bureaucracy Speaks, 8 J. PUB. ADMIN. RES. & THEORY 39 (1998);
159. Scott R. Furlong, Interest Group Influence on Rule Making, 29 ADMIN. & SOC. 213 (1997);
160. MICHAEL D. REAGAN, THE POLITICS OF POLICY (1987);
161. BARRY M. MITNICK, THE POLITICAL ECONOMY OF REGULATION (1980).
162. Without an actual market for endangered sea turtles, it is impossible to place an actual dollar value on the cost of taking each additional animal. Economists have developed a number of methods for measuring the value of these non-market commodities, most notably, "contingent valuation." See, e.g., John B. Loomis & D.S. White, Economic Benefits of Rare and Endangered Species: Summary and Meta-analysis, 18 ECOLOGICAL. ECON. 197 (1996). While the amount may be difficult to determine, there is no question that they meet the criteria for having economic value: they are limited in quantity, and people enjoy them.
163. OLSON, supra note 96.
164. Id.
165. Id.
166. Eagle & Thompson, supra note 13.
167. Id. at 657.
168. See, e.g., CARL SAFINA, SONG FOR THE BLUE OCEAN 7-116 (1997);
169. Hennessey & Healey, supra note 13.
170. In some regions of the country, other groups feel disenfrachised within the multiple-use process. Recreational fishermen, for example, perceive that their voices are often swamped by those of commercial fishermen. A recent story in the St. Petersburg Times illustrates:
171. The average depth of the world's oceans is about two and a half miles. ELLEN J. PRAGER & SYLVIA A. EARLE, THE OCEANS 90 (2000).
172. The world depth record for scuba diving is less than one-quarter of a mile. Matthew Beard, British Scuba Diver Sets New World Record with Depth of 313 Metres, THE INDEPENDENT (LONDON), Dec. 22, 2003, at 7.
173. According to some early accounts, it may have once been the case that abundant marine life could be easily detected from the beach or the ocean's surface. Early explorers reported from Newfoundland, for example, that "the sea is covered with fish which are caught not merely with nets but with baskets, a stone being attached to make the baskets sink with the water." W.H. Lear, History of Fisheries in the Northwest Atlantic: The 500-Year Perspective, 23 J. NW. ATLANTIC FISHERY SCI. 41, 44 (1998) (quoting the explorer John Cabot).
174. As author and ocean advocate Carl Safina has noted: People have [an] intimate relationship with birds because you can hang a bird feeder out the window and you can admire birds. But you can't put a fish feeder outside your window and admire fish. You have no relationship with them. You see them only as a slab of meat. It's as though our whole relationship with birds was the experience of being in the poultry section of the supermarket. Bill Moyers Reports: Earth on Edge (PBS television broadcast June 19, 2001). A transcript of the Carl Safina interview is available at http://www.pbs.org/earthonedge/program/ safina2.html.
175. See also Tatiana Brailovskaya, Obstacles to Protecting Marine Biodiversity through Marine Wilderness Preservation: Examples from the New England Region, 12 CONSERVATION BIOLOGY 1235 (1998). There have been efforts to determine the economic value individuals put on the simple existence of wildlife.
176. Loomis & White, supra note 100. I have not been able to find even one study, however, where an economist attempted to determine if there is existence value in marine fish species.
177. When asked, "Which of the following do you think is the most important environmental problem facing this country?", only five percent of survey respondents named the ocean, while about one percent identified threats to coastal habitats. Vikki N. Spruill, U.S. Public Attitudes Toward Marine Environmental Issues, 10 OCEANOGRAPHY 149 (1997).
178. More telling, only ten percent replied that they would be "almost certain to attend council or state legislative meetings on ocean issues." Id. at 151.
179. Some scholars have attempted to explain accomplishments of the environmental movement with what is known as the "Baptist-bootlegger" theory: While environmentalists provide a moral rationale for protecting the environment, the probabilities of their political success are enhanced when the cause is also supported by those who stand to gain financially from protective measures. Bruce Yandle & Stuart Buck, Bootleggers, Baptists, and the Global Warming Battle, 26 HARV. ENTL. L. REV. 177 (2002).
180. Thus, for example, companies with large private-land timber holdings might support environmental laws restricting timber harvest on public land. Bruce Yandle, Bootleggers and Baptists in Retrospect, 22 REGULATION 5 (1999). While Yandle appears to regard the phenomenon as an undesirable distortion of the political process, he also recognizes its value in explaining or predicting legislative outcomes.
181. Yandle & Buck, supra, at 7.
182. These lands are governed, respectively, under the provisions of the Wilderness Act of 1964, 16 U.S.C. § 1131 (2000),
183. the National Park Service Organic Act, 16 U.S.C. § 1 (2000),
184. and the National Wildlife Refuge System Administration Act, 16 U.S.C. § 668dd (2000).
185. RONALD A. FORESTA, AMERICA'S NATIONAL PARKS AND THEIR KEEPERS 24 (1984);
186. see ALFRED RUNTE, NATIONAL PARKS: THE AMERICAN EXPERIENCE 173 (University of Nebraska Press 1997) (1979);
187. UNITED STATES DEPARTMENT OF THE INTERIOR, FISH AND WILDLIFE SERVICE, RESTORING AMERICA'S WILDLIFE 1937-1987 1-16 (1987).
188. There are an estimated 2.3 million scuba divers in the United States, making it comparable in popularity to sports such as cross-country skiing. Professional Association of Diving Instructors, PADI Statistics, httD://www.padi.com/english/common/padi/statistics/6.asp (last visited Dec. 1, 2005);
189. by comparison, there are an estimated fifty-five million campers, thirty million hikers, nineteen million hunters, and thirty-eight million freshwater fishermen. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005, at 774 (2005).
190. While recreational saltwater fishing is a popular activity (twelve million people reported fishing once during 2002, id.), the recreational fishing industry has not historically supported the agenda of marine conservation groups. Language on the website for the Recreational Fishing Alliance, one of the largest saltwater sportfishing groups in the United States, is typical: You can join the RFA and fight back, or you could just let the government, the industrial fishing fleets, environmentalists and the politicians decide for you. That is what most of us recreational anglers did in years past and they walked all over us.
191. Recreational Fishing Alliance, Join the RFA, http://www.joinrfa.org/ join.asp (last visited Feb. 14, 2005).
192. Hardin, supra note 10, at 1244. Simply put, commons users have no incentive to sacrifice short-term gain for greater long-term benefit. While it might make sense, for example, to allow a fish to reproduce before catching it, the commons user will rationally choose not to wait: without a legally recognized right to the progeny, she has no assurance that she will have the opportunity to catch them.
193. Hardin, supra note 10, at 1245.
194. See also PHILIP A. NEHER, NATURAL RESOURCE ECONOMICS: CONSERVATION AND EXPLOITATION 256 (1990).
195. The common pool problem begins with the simple idea that the efficient intertemporal allocation of resources requires that any decision on the current rate of use takes into account the entailments for future supplies. A "sole owner" (controller) of a resource who has perpetual tenure is motivated to do just that. He must live with the future consequences of his own current decisions.... There is no reason in principal why a state planning authority cannot mimic the responsible behavior of a privately motivated sole owner. Id.
196. It should be noted that there is a line of scholarship questioning the need for sole ownership, arguing that communities, in particular cases, can organize to successfully manage common resources collectively. See, e.g., ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990). One can easily make the case, however, that "community-based" management is simply a third form of sole ownership.
197. Two countries, Iceland and New Zealand, have implemented extensive "individual quota" programs that effectively privatize the total allowable catch of fish by dividing it into shares. Newell et al., Fishing Quota Markets, 49 J. ENVTL. ECON. & MGMT. 437 (2005).
198. Fishermen can buy and sell these quota shares, subject to some restrictions. Id.
199. There are only a few individual quota programs in use in the United States. See Katrina M. Wyman, From Fur to Fish: Reconsidering the Evolution of Private Property, 80 N.Y.U. L. REV. 117 (2005).
200. See Barton H. Thompson, Jr., Tragically Difficult: The Obstacles to Governing The Commons, 30 ENVTL. L. 241 (2000).
201. Fishermen's incentives remain the same because of the management tools chosen by regulators. The most common tool used to manage American fisheries is the annual limit on total catch, or "quota." Under an annual quota system, regulators set a cap on the amount of fish that can be caught each year. Fishermen compete with each other to catch these fish until the quota has been met, perpetually investing in better equipment to give themselves an advantage over others. Leonard J. Mirman & Daniel F. Spurber, Fishery Regulation with Harvest Uncertainty, 26 INT'L. ECON. REV. 731 (1985);
202. James A. Crutchfield, An Economic Evaluation of Alternative Methods of Fisheries Regulation, 4 LAW & ECON. 131 (1961).
203. David Dana refers to this phenomenon as "the tragedy of the political commons." David A. Dana, Overcoming the Political Tragedy of the Commons: Lessons Learned from the Reauthorization of the Magnuson Act, 24 ECOLOGY L.Q. 833 (1997).
204. Empirical evidence supports the hypothesis that current institutions are susceptible to this mechanism: The symptoms described by the two commissions (for example, overfishing) are identical to symptoms of the "ordinary," unregulated tragedy of the commons. H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. POL. ECON. 124 (1954).
205. Perhaps the best example of a "pure" multiple-use, balancing statute is the Federal Lands Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1782 (2000) [hereinafter FLPMA].
206. The FLPMA, for example, provides that, in allocating land to uses, the Bureau of Land Management shall "use and observe the principles of multiple use and sustained yield set forth in this and other applicable law." Id. § 1711(c)(1). The statute defines "multiple use" to mean: [T]he management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.
207. Id. § 1702(c).
208. For an examination of the political reasons why a legislature might favor such grants of broad administrative discretion, see Matthew D. McCubbins, The Legislative Design of Regulatory Structure, 29 AM. J. POL. SCI. 721 (1985).
209. The three leading examples of dominant-use laws relating to the public lands are the Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136 (2000),
210. the National Park Service Organic Act, 16 U.S.C. §§ 1-20 (2000),
211. and the National Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. §§ 668dd-668ee (2000).
212. The Wilderness Act, for example, provides that: [E]ach agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character. Except as otherwise provided in this chapter, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use. 16 U.S.C. § 1133(b).
213. Under the National Wildlife Refuge System Improvement Act, for example, those wishing to pursue an activity within a National Wildlife Refuge have the burden of proving that the proposed activity is "compatible" with the "major purposes" for which the refuge in question was established. 16 U.S.C. § 668dd(d)(1)(a)(1).
214. Land use laws, incorporating the concept of rules and variances, illustrate well the concept of a presumption-based approach to ordering uses. See, e.g., S.C. CODE ANN. § 6-29-800 (1976) (revised 2004).
215. If this were true, the legislature would never enact multiple-use legislation at all. Instead, it would only pass dominant-use statutes favoring concentrated groups.
216. It has been posited that members of the public, including groups, have more input into agency processes than legislative processes. According to Peter Schuck, "the administrative agency is often the site where public participation in lawmaking is most accessible." Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775, 781 (1999).
217. Elaborating, Schuck argues that: The administrative agency is often the most accessible site for public participation because the costs of participating in the rulemaking and more informal agency processes, where many of the most important policy choices are in fact made, are likely to be lower than the costs of lobbying or otherwise seeking to influence Congress. Moreover, the institutional culture of the administrative agency, despite its often daunting opacity, is probably more familiar to the average citizen, who deals with bureaucracies constantly and probably works in one, than the exotic, intricate, unruly (and "un-ruley"), insider's culture of Congress. Id.
218. For two sides of this debate (in the antitrust context), see William H. Page, Interest Groups, Antitrust, and State Regulation: Parker v. Brown in the Economic Theory of Legislation, 1987 DUKE L.J. 618 (1987) (agencies more susceptible to capture)
219. and John Shephard Wiley, Jr., A Capture Theory of Antitrust Federalism: Reply to Professors Page and Spitzer, 61 S. CAL. L. REV. 1327 (1988) (legislature more susceptible to capture).
220. Wilderness statistics are available at the website of the Wilderness Institute, www.wilderness.net (last visited Dec. 1, 2005). The nation's only National Petroleum Reserve, located on the North Slope of Alaska, is a 23 million acre tract of land originally set aside as Naval Petroleum Reserve, Number 4, by President Warren Harding in 1923. Exec. Order 3797-A (Feb. 27, 1923). Congress later enacted the reserve into law. 42 U.S.C. § 6502 (2000).
221. As an interesting side note, Naval Petroleum Reserve, Number 3, was at the center of the "Teapot Dome" scandal that marred the Harding administration. BURL NOGGLE, TEAPOT DOME: OIL AND POLITICS IN THE 1920S 16 (1962).
222. The petroleum industry ranks as the eighth largest contributor to Congressional campaigns over the last 16 years. Opensecrets.org, Industry Totals: Oil and Gas, http://www.opensecrets.org/industries/ indus.asp?Ind=E01 (last visited Dec. 1, 2005).
223. See supra note 132 and accompanying text.
224. Dominant-use agencies serve in effect as proxies for previously under-represented groups. Narrow legislative mandates characterizing dominant-use agencies make them responsive to their constituencies in at least two ways. First, the mandate itself forces the agency to conform to its mission. Second, the narrow mandate would make it easier for members of the "represented" constituency to seek relief in court. Courts are understandably very reluctant to make judgments regarding the legitimacy of multiple-use decisions. See, e.g., Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 55-58 (2004) (describing multiple-use management as "a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, 'including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values."')
225. Courts should "avoid...entanglement in abstract policy disagreements which [they] lack both expertise and information to resolve." Id. at 66.
226. Steele, supra note 25.
227. Id. at 713.
228. Id. at 724.
229. Gerken, supra note 27.
230. Id. at 1122.
231. In at-large voting districts, the voice of minority voters is swamped by the voice of the majority. Minority districts, on the other hand, ensure that minorities will at least sometimes have "the power to decide, a power usually enjoyed solely by members of the majority." Id. at 1126.
232. See id, at 1145-46, 1162;
233. Robin Martin, Minority Influence and Argument Generation, 35 BRITISH J. SOC. PSYCHOL. 91 (1996);
234. Charlan J. Nemeth, Differential Contributions of Majority and Minority Influence, 93 AM. PSYCHOL. REV. 23 (1986).
235. Gerken, supra note 27, at 1126, 1161;
236. see also Charlan J. Nemeth & John Rogers, Dissent and the Search for Information, 35 BRITISH J. SOC. PSYCHOL. 67 (1996).
237. Gerken, supra note 27, at 1171-73.
238. Id. at 1172.
239. Id. at 1173-74.
240. It would also be possible to apply zoning, but not disaggregation, to the management of ocean space. In this model, all zones would be managed by the same agency. While this approach would improve the bargaining position of conservationists, it would not produce many of the other benefits described by Gerken. Under either model, it is critical that zones be determined by the legislature. A model wherein the legislature delegates zoning power to a multiple-use agency is likely to meet the same fate as other forms of multiple-use management.
241. One interesting question is whether it is necessary to give "powerful" interests such as the fishing industry or the petroleum industry "their own" ocean space. On the one hand, powerful groups do not need the same protection that weak groups need from the multiple-use forum. On the other hand, the creation of such areas may render the entire agency-diversity "project" more politically feasible. If powerful groups see some benefit for themselves in the new system, they may offer less opposition to the idea. The increased certainty that would go along with the creation of a "Fishing Area" might provide the industry with some reason to support the entire project. The alternative would be to simply create conservation areas (and agencies), while leaving the rest of the ocean under a multiple-use regime. This is the approach Congress has taken with the public lands, where about thirty-five percent are managed under the FLPMA. Bureau of Land Management, BLM Facts, www.blm.gov/nhp/facts/index.htm (last visited Dec. 1, 2005).
242. See generally CHARLES F. WILKINSON ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW (5th ed. 2002).
243. National Park Service Organic Act, 16 U.S.C. § 1131 (2000).
244. Conflicts that persist over management of the parks have arisen as interests that once "occupied" a single interest group of consistent uses (recreation and conservation) have, owing to increases in population and changes in recreation technologies, come into conflict with one another. See generally JOSEPH SAX, MOUNTAINS WITHOUT HANDRAILS (1980).
245. Improvement Act of 1997, 16 U.S.C. § 668dd (2000).
246. The National Forest Service Organic Act of 1897, 16 U.S.C. § 475 (2000), provides in part that: No public forest reservation [national forest] shall be established, except to improve and protect the forest within the boundaries [national forest] or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.
247. The National Forest Management Act requires the Forest Service to develop forest management plans that make allowance for other uses in the National Forests, including recreation, grazing, and wildlife. National Forest Management Act of 1976, 16 U.S.C. § 1604(g)(3).
248. Broadening the original purpose of these lands, the Act changed the system into more of a multiple-use system than had originally pertained. A good case can be made that this broadening was the catalyst for an extraordinary amount of political and legal wrangling, "highlighted" by disputes over the Northern Spotted Owl on National Forest lands in the Pacific Northwest. See Jeb Boyt, Struggling to Protect Ecosystems and Biodiversity Under NEPA and NFMA: The Ancient Forests of the Pacific Northwest and the Northern Spotted Owl, 10 PACE ENVTL. L. REV. 1009 (1993).
249. See supra note 123 and accompanying text.
250. Gerken, supra note 27, at 1145-48; see also Susan A. Banducci et al., Minority Representation, Empowerment, and Participation, 6 J. POL. 534 (2004); Lawrence Bobo & Franklin D. Gilliam, Jr., Race, Sociopolitical Participation, and Black Empowerment, 84 AM. POL. SCI. REV. 377 (1990). As noted above, the public's interest in participating is currently quite low. Spruill, supra note 111.
251. RUNTE, supra note 114, at 84-85.
252. These areas provide ecological benefits to the enclosed area and to surrounding areas. Maurya B. Falkner & Thomas J. Stohlgren, Evaluating the Contribution of Small National Park Areas to Regional Biodiversity, 17 NAT. AREAS J. 324 (1997).
253. Large national parks such as Yellowstone play a significant role in conserving intact ecosystems, large mammal populations, and natural processes that occur at large spatial scales. Persistence of native biodiversity probably is greater in large reserves than it is in small reserves. However, we have demonstrated that smaller units also play a major role in the preservation of regional biodiversity. Id. at 329-30.
254. F. Robert Dwyer & Orville C. Walker, Jr., Bargaining in an Asymmetrical Power Structure, 45 J. MARKETING 104, 106 (1981).
255. See also Karen S. Cook & Richard M. Emerson, Power, Equity, and Commitment in Exchange Networks, 43 AM. SOC. REV. 721 (1978).
256. See supra note 117 and accompanying text;
257. see also Michael S. Chwe, Minority Voting Rights Can Maximize Majority Welfare, 93 AM. POL. SCI. REV. 85 (1999).
258. Gerken, supra note 27, at 1172.
259. Wilderness Areas arc "overlay" designations. That is, they exist as parts of other "primary" types of public land, such as National Forests or National Parks. Bureau of Land Management wilderness regulations can be found at 43 C.F.R. § 6300 (2005). Forest Service wilderness regulations are located throughout the agency's regulations.
260. See, e.g., 36 C.F.R § 251.114 (2005) (ingress and egress to private holdings across wilderness areas).
261. The Park Service has issued park-specific regulations for wilderness areas within individual parks. See, e.g., 36 C.F.R 7.45 (2005) (Everglades National Park). Each agency has also issued "wilderness policies," generally located in their agency manuals. Wilderness.net, http://www.wilderness.net/ index.cfm?fuse=NWPS&sec=legisPolicy (last visited Dec. 1, 2005).
262. See Markowitz, supra note 28.
263. Some have already made this argument in support of the creation of marine reserves. Donna Christie argues that "[t]he inherent uncertainty in science and variability in ecosystems necessitates measures to insure the intergenerational rights in regard to the diversity and quality of, and access to, marine living resources. Marine reserves can provide that "insurance policy" for future generations." Donna R. Christie, Marine Reserves, the Public Trust Doctrine and Intergenerational Equity, 19 J. LAND USE & ENVTL. L. 427, 434 (2004).
264. See also Jane Lubchenco et al., Plugging a Hole in the Ocean: The Emerging Science of Marine Reserves, 13 ECOLOGICAL APPLICATIONS S-3 (2003).
265. Marc Mangel, Irreducible Uncertainties, Sustainable Fisheries and Marine Reserves, 2 EVOLUTIONARY ECOLOGY RES. 547 (2000).
266. Healthier negotiations would reduce conflicts and the costs associated with conflicts. According to a 2002 study by the National Academy for Public Administration, the number of lawsuits filed by interest groups against the National Oceanic and Atmospheric Administration increased by several hundred percent between 1990 and 2002. NAT'L. ACAD. OF PUB. ADMIN., COURTS, CONGRESS, AND CONSTITUENCIES: MANAGING FISHERIES BY DEFAULT (2002).
267. The example of oil drilling on public land illustrates how "turning the tables," as Gerken puts it, can generate new information. Gerken, supra note 27, at 1142-46.
268. Currently, the Bureau of Land Management has leased, or offers for leasing, over 200 million acres of western public lands to private firms for oil and gas production. These 200 million acres represent a significant percentage of all BLM lands and a significant percentage of all federal public lands in the United States. Moreover, many of the areas offered for drilling are located near population centers, such as Los Angeles, Denver, Portland, and Seattle. However, these leases and leasing offers are rarely mentioned in the media or elsewhere in public debate. See Environmental Working Group, Who Owns the West?, http://www.ewg.org/oil_and_gas/execsumm.php (last visited Dec. 1, 2005).
269. Compare the Arctic National Wildlife Refuge, where the total area proposed for exploration totals about 1.5 million acres. Artic National Wildlife Refuge, http://www.anwr.org/backgrnd/where.htm (last visited Feb. 20, 2006). Searching the phrase "Arctic National Wildlife Refuge" in a database of newspaper articles published in the United States in the first eleven months of 2005 returned more the 3,000 "hits." In the case of the Arctic refuge, the powerful group (oil and gas) has been forced to generate information about the ecological impacts of its activities by the strong legal presumption against drilling in the refuge.
270. Cortner et al., supra note 53, at 160-61.
271. L. Eberhart & R. Knight, How Many Grizzlies in Yellowstone?, 60 J. WILDLIFE MGMT. 416 (1996).
272. According to its website: The Greater Yellowstone Coordinating Committee (GYCC) was formed between the National Park Service and US Forest Service in 1964 through a signed Memorandum of Understanding (MOU). The MOU provides for mutual cooperation and coordination in the management of core federal lands in the Greater Yellowstone area. The MOU was again revised in 2002 to reflect the inclusion of the US Fish and Wildlife Service on the Coordinating Committee. The committee consists of the National Park Service Rocky Mountain Regional Director, the National Forest Service Intermountain Regional Forester, and the U.S. Fish and Wildlife Service Mountain Prairie Regional Director; Park Superintendents from Yellowstone and Grand Teton National Parks; Forest Supervisors from the Beaverhead-Deerlodge, Bridger-Teton, Caribou-Targhee, Custer, Gallatin, and Shoshone National Forests; Refuge Manager from the National Elk Refuge (also represents the interests of Red Rock Lakes National Wildlife Refuge). The Greater Yellowstone Coordinating Committee, The GYCC-Who We Are, http://mpin.nbii.org/ gycc.aboutus/index.html (last visited Dec. 1, 2005). In addition to grizzly bears, the committee works together on a wide range of other cross-cutting issues, including air and water quality, the spread of wildlife diseases, recreation trails, and forest fires.
273. In the late 1990s, the U.S. Fish and Wildlife Service, supported by environmental groups, pushed for the reintroduction of grizzlies into the Selway-Bitterroot and Frank Church-River of No Return Wilderness areas on Forest Service land in Idaho. A plan was initially approved. Sherry Devlin, Grizzlies Invited Back to the Bitterroot, HIGH COUNTRY NEWS, Dec. 4, 2000. However, based on opposition from, among others, then-head of the U.S. Forest Service Dale Bosworth, Secretary of the Interior Gale Norton decided not to go forward with the reintroductions.
274. Environmental News Service, Grizzly Bears Will Not Be Reintroduced into U.S. West, June 21, 2001, http://ens-newswire.com/ens/jun2001/ 2001-06-21-03.asp.
275. INTERAGENCY GRIZZLY BEAR COMMITTEE, YELLOWSTONE ECOSYSTEM SUBCOMMITTEE, FIVE-YEAR WORKPLAN, http://www.fs.fed.us/r1/wildlife/igbc/Subcommittee/ yes/YES_5-year.pdf (last visited Dec. 1, 2005) (Forest Service agrees to "to incorporate the Conservation Strategy habitat and monitoring requirements into ... 6 Forest Plans.").
276. Juliet Eilperin, Grizzlies May Lose Status as "Threatened", WASH. POST, Nov. 15, 2005, at A3.
277. A recent news report illustrates the application of dominant-use zoning as a tool for resolving environmental conflicts. Clifford Krauss, Canada to Shield 5 Million "Forest Acres, N.Y. TIMES, Feb. 7, 2006, at A6. To resolve long-standing disputes over logging in the Great Bear Rain Forest, "an improbable assemblage of officials from the ... government, coastal Native Canadian nations, logging companies and environmental groups" agreed to put five million acres "off-limits to loggers." In exchange, the loggers "will be guaranteed the right to work in 10 million acres of forest ... but they will be obliged to cut selectively: away from critical watersheds, bear dens and fish spawning grounds."
278. Id.
279. The initial allocation of ocean space to the range of uses would be challenging, but not impossible. The most useful analogy for purposes of thinking about this enterprise is the municipal zoning model, in which, after gathering information about the area to be zoned, a planning commission makes recommendations to the local government body about where various kinds of zones ought to be located. JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 637-40 (2d ed. 2005).