Roll on, thou deep and dark blue ocean . . . ten thousand fleets

sweep over thee in vain . . . but [man's] control stops with the shore.¹

The ocean holds 97% of the water on earth² and 80% of the world's biodiversity.³ The ocean also provides the setting for a significant portion of the world's economic activities. Over 95% of U.S. foreign trade moves by sea,⁴ 25% of world petroleum production is supplied by offshore oil and gas wells,⁵ world fish exports represent 11% of total global agricultural exports,⁶ and coastal tourism represents 85% of all U.S. tourism.⁷ Not surprisingly, two-thirds of the world's population lives within 50 miles of a coastline.⁸ In contrast to Lord Byron's early 19th century view, man has demonstrated that his activities can have profound effects on the ocean and its living marine resources.⁹ This thesis addresses the reach of federal regulatory authority over living marine resources.

The vitality of the ocean to economies as well as ecosystems, and the interrelation of both, has been recognized in numerous statutes and other federal actions.¹⁰ Major federal statutes concerned with the protection of living marine resources include the Marine Mammal Protection Act (MMPA),¹¹ the Endangered Species Act (ESA),¹² the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA),¹³ the Marine Protection, Research, and Sanctuaries Act (MPRSA),¹⁴ and the Coastal Zone Management Act (CZMA).¹⁵ Living marine resource statutes typically provide either specific or general regulatory authority [30 ELR 11007] to implementing federal agencies, or both.¹⁶ The exercise of this authority can have sweeping implications for affected activities, such as shipping, fishing, aquaculture, mineral extraction, military operations, research, and tourism, and often requires accounting for a unique blend of competing environmental, commercial, tribal, maritime, state, national, and international policies and requirements. Within the contours of these policies and requirements, the precise limits of federal agency authority to regulative activities affecting living marine resources are not always clear.