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When Economics and Conservation Clash: Challenges to Economic Analyses in Fisheries Management

October 2001

Citation: 31 ELR 11168

Issue: 10

Author: Kristen M. Fletcher

In recent years, the National Marine Fisheries Service (NMFS) and Secretary of Commerce have accumulated hundreds of lawsuits challenging fisheries management rules made by the agency. Litigation is not new to these parties; controversy has pervaded fisheries management since the 1976 passage of the primary U.S. fisheries statute—the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).1 However, the magnitude of litigation has reached historic levels in the years since its 1996 Amendments.

One contributing factor for the increase is the requirement to conduct economic analyses of fisheries rules and minimize the economic effects that the rules have on fishing communities. In 1996, the Magnuson Act was amended to require the Secretary of Commerce to conduct economic analyses that balance the obligation to manage fishery resources with the potential adverse effects on fishing communities and (to the extent practicable) minimize those adverse effects. Along with the Magnuson Act, the Regulatory Flexibility Act (RFA)2 was amended the same year, expanding the analysis that federal agencies must complete to determine the effect of proposed regulations on small businesses. While some petitioners choose to challenge regulations under only one of these statutes, the determination of economic effects under each law is intricately linked. Recent lawsuits reveal the tightrope that the Secretary of Commerce and the NMFS walk between science, economics, and conservation. Although the resulting judicial decisions are contradictory and leave certain questions of economic survival of a fishery or a fishing community ripe for high court review, they can also provide a necessary roadmap for the Secretary and the agency in performing effective assessments of economic impacts.

The author is Director, Mississippi-Alabama Sea Grant Legal Program. She received her LL.M., Environmental and Natural Resources Law, Northwestern School of Law, Lewis and Clark College (1998); J.D., University of Notre Dame Law School (1996); B.A., Auburn University (1993). This Article is a result of research sponsored in part by the National Oceanic and Atmospheric Administration, the U.S. Department of Commerce under Grant Number NA86RG0039-4, the Mississippi-Alabama Sea Grant Consortium, and the Mississippi Law Research Institute at The University of Mississippi Law Center. The views expressed herein are the author's own.

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