30 ELR 11006 | Environmental Law Reporter | copyright © 2000 | All rights reserved

The Regulatory Reach of Living Marine Resource Statutes: A Moving Target in Uncharted Waters

Andrew J. Turner authored this Article while enrolled in the George Washington University Law School as an Environmental LL.M. candidate and serving as an attorney with the National Oceanic and Atmospheric Administration (NOAA) Office of General Counsel. Mr. Turner is currently an associate with Hunton & Williams in Washington, D.C. He received his B.B.A. in December 1988 from Florida Atlantic University, his J.D. in May 1992 from West Virginia University College of Law, and his L.L.M. in May 2000 from the George Washington University Law School. The views expressed in this Article are solely those of the author and are not intended to represent NOAA, the National Marine Fisheries Service, or any other agency, person, or entity.

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[30 ELR 11006]

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.

Promulgation of a regulation that affects living marine resources is likely to face opposition from one or more sides. It is not unusual for an agency to face simultaneous challenges for both failing to go far enough under its statutory authority, and for exceeding that authority.¹⁷ Court decisions interpreting federal agency regulatory authority over natural resources have generally taken an expansive view, according agencies significant deference in interpreting their enabling statutes. Recent decisions however, such as American Trucking Ass'n v. U.S. Environmental Protection Agency,¹⁸ holding that the U.S. Environmental Protection Agency's (EPA's) construction of the Clean Air Act (CAA) gave effect to an unconstitutional delegation of legislative power, and Brown & Williamson Tobacco Corp. v. FDA,¹⁹ holding that the Food and Drug Administration (FDA) lacks jurisdiction to regulate tobacco products, have been viewed as signaling a trend toward a narrowing of federal agency regulatory power.²⁰ Such a trend could have significant implications for the complex field of living marine resource regulation.

This thesis explores the limits of federal regulatory authority over living marine resources by providing a background on marine resource statutes and federal agency authority generally, a discussion of principles governing regulatory authority, consideration of recent court decisions, and an analysis of three proposals that may test the limits of federal regulatory authority over living marine resources. The outer limits of this authority are primarily a question of constitutional reach, but may also be defined by geography, subject matter, agency jurisdiction, international law, and other factors.

I. Background

An analysis of federal regulatory authority over living marine resources requires first considering the nature of federal agency regulation in general, major federal and international living marine resource laws, and the federal agencies responsible for regulation of activities that affect living marine resources.

A. Federal Agency Regulation

Regulation of activities that affect living marine resources is generally exercised by federal agencies under the authority of applicable statutes, such as the MMPA, the MSFCMA, and the ESA.²¹ Federal administrative agencies are charged with fulfilling the constitutional obligation of the executive branch to ensure that the laws are faithfully executed.²² The power and function of an administrative agency is determined by looking to the specific laws that create or empower the agency.²³ Accordingly, whether an agency has the power to issue a particular regulation is, at the outset, a question of statutory construction.²⁴

Administrative agencies have only those powers conferred upon them by statute.²⁵ Agency powers may be specifically described in the statute or they may be general. For instance, the MMPA provides specific authority to the Secretary of Commerce to promulgate regulations governing the issuance of marine mammal scientific research permits.²⁶ By contrast, the MMPA also provides the Secretary with broad general authority to promulgate "all necessary and appropriate regulations" to achieve the purposes of the statute.²⁷ The lack of clearly defined limits on this type of general statutory authority make its exercise subject to greater dispute.²⁸

Federal courts are the final authorities on issues of statutory construction.²⁹ The federal courts generally show deference, however, to the construction given a statute by the agency charged with administering it if the construction is permissible and reasonable.³⁰ In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,³¹ the U.S. Supreme Court stated that "a federal agency and any reviewing court must give effect to the 'unambiguously expressed' intent of Congress; if congressional intent is not clear, a reviewing court will accord 'considerable weight' to an agency's construction of the statutory scheme it is entrusted to administer."³² Thus, the promulgation of a living marine resource regulation by a federal agency should, in the absence of specific statutory authority, be upheld by a reviewing court if it is based on a construction of the statutory scheme that is both reasonable and permissible.³³

[30 ELR 11008]

B. Living Marine Resource Statutes

Described below are some of the major U.S. living marine resource statutes and other relevant laws, including the MMPA, the ESA, the MSFCMA, the MPRSA, and the CZMA.³⁴

1. Marine Mammal Protection Act

The MMPA establishes a moratorium on the import and taking of marine mammals in the United States and by persons subject to U.S. jurisdiction on the high seas.³⁵ The MMPA is implemented by the U.S. Department of Commerce through the National Marine Fisheries Service (NMFS), which has responsibility for whales, dolphins, seals, and sea lions, and by the U.S. Department of the Interior (DOI) through the U.S. Fish and Wildlife Service (FWS), which has responsibility for manatees, otters, walrus, dugongs, and polar bears.³⁶ The MMPA authorizes the Secretaries of Commerce and the Interior to issue permits for the "taking" of marine mammals for certain purposes, including scientific research, public display, and commercial photography.³⁷ The MMPA also contains a significant commercial fishing component that establishes a registration and authorization regime governing the taking of marine mammals incidental to commercial fishing.³⁸ Finally, the MMPA provides a mechanism for authorizing certain types of "incidental takes" of marine mammals.³⁹

2. Magnuson-Stevens Fishery Conservation and Management Act

The MSFCMA establishes a regional management system that allocates fishery harvesting rights within the U.S. Exclusive Economic Zone (EEZ).⁴⁰ The Act establishes eight Regional Fishery Management Councils covering the Caribbean, Gulf of Mexico, Mid-Atlantic, New England, North Pacific, Pacific, South Atlantic, and Western Pacific regions.⁴¹ The Regional Fishery Management Councils prepare fishery management plans (FMPs) for commercial and recreational fisheries within their regions which they determine require active federal management.⁴² FMPs are prepared in conformance with established national standards and submitted to the Secretary of Commerce for approval.⁴³ Plans approved or modified by the Secretary are implemented through regulations issued by NMFS.⁴⁴

3. Endangered Species Act

The ESA provides for the identification and protection of threatened and endangered species.⁴⁵ The Act has four basic components: identification of plant, fish, and wildlife species that need protection, protection measures, consultation prior to federal actions that may affect them, and enforcement.⁴⁶ Implementation of the ESA is divided between the Department of Commerce, acting through NMFS, for marine species and the DOI, acting through the FWS, for terrestrial species.⁴⁷ After a species is listed under the ESA, recovery plans are prepared which identify planned recovery measures.⁴⁸ These measures are generally implemented by regulation.⁴⁹ In addition to the protection measures provided for endangered species in the statute, the ESA authorizes the promulgation of regulations to implement the Act.⁵⁰

4. Lacey Act

The Lacey Act prohibits the trade of fish, wildlife, or plants taken in violation of any U.S. or Native American tribal law, treaty, or regulation, or acquired through a violation of foreign law.⁵¹ The Secretary of Commerce is authorized to issue regulations under the Act relating to, among other things, the marking and labeling of packages containing fish or wildlife.⁵² The Act is enforced, for example, against foreign-flagged vessels that fish illegally in the EEZs of South Pacific island countries and import the fish into American Samoa and Guam, and against U.S. fishermen who operate illegally in foreign waters, such as the Bahamas.

5. Marine Protection, Research, and Sanctuaries Act

The MPRSA, like most of the statutes that follow, is not exclusively concerned with protection of living resources.⁵³ The Act does provide for the protection of "sanctuary resources," which include both living and non-living resources of a national marine sanctuary.⁵⁴ The MPRSA authorizes the Secretary of Commerce, acting through the National Ocean Service (NOS), to designate national marine sanctuaries and regulate actions likely to injure or destroy sanctuary resources.⁵⁵ The Act provides authority to promulgate regulations consistent with the purpose of the sanctuary.⁵⁶ It also provides for special use permits covering activities in the sanctuary, including access to and use of sanctuary resources.⁵⁷

[30 ELR 11009]

6. Coastal Zone Management Act

The CZMA establishes a federal funding program within the Department of Commerce that funds state development and administration of coastal programs found to be consistent with statutory guidelines.⁵⁸ The Act also requires that federal activities affecting the coastal zone be consistent with approved state management programs to the maximum extent practicable.⁵⁹ The CZMA is implemented by NOS.

7. Clean Water Act

The Clean Water Act (CWA) sets pollution discharge and water quality standards, and establishes permit programs for water quality, point source pollutant discharges, ocean pollutiondischarges, and dredging or filling of wetlands.⁶⁰

8. Other Acts

Other Living Marine Resource statutes⁶¹ include, inter alia, the Fur Seal Act,⁶² the Anadromous Fish Conservation Act,⁶³ the Antarctic Marine Living Resources Convention Act of 1984,⁶⁴ and the South Pacific Tuna Act.⁶⁵

C. International Law

President Truman's proclamation in 1945 that the United States has sovereign rights over its continental shelf is considered the beginning of the modern era of law governing uses of the sea.⁶⁶ The United Nations Convention on the Law of the Sea (UNCLOS) is widely considered the central source of international law relating to uses of the sea. UNCLOS is complemented by other treaties and conventions related to specific ocean activities.⁶⁷

1. United Nations Convention on the Law of the Sea

UNCLOS establishes limits and requirements relating to, among other things, maritime boundaries, navigation rights and duties, conservation of living marine resources, protection of the marine environment, and settlement of disputes.⁶⁸ Although the United States signed the Agreement Relating to Implementation of Part 11 in 1994, the United States has failed to ratify UNCLOS. UNCLOS provides varying degrees of coastal state jurisdiction over living marine resources. For example, UNCLOS provides that nations have sovereign rights over living resources within their EEZs (out to 200 miles).⁶⁹ Nations are required to take measures to conserve fisheries within their EEZs, and foreign nationals must comply with those measures.⁷⁰ UNCLOS does not restrict the right of nations to take actions not specifically provided for under UNCLOS to regulate or prohibit the exploitation of marine mammals within their EEZs or by their nationals on the high seas.⁷¹ UNCLOS also provides rights and duties relating to highly migratory species,⁷² anadromous and catadromous species,⁷³ and sedentary species on the continental shelf (out to 350 nautical miles).⁷⁴ Finally, nations are required to adopt and enforce laws to protect and preserve the marine environment, including pollution from any source.⁷⁵

2. Convention on Fishing and Conservation of the Living Resources of the High Seas

The Convention on Fishing and Conservation of the Living Resources of the High Seas resulted from the first International Conference on the Law of the Sea held in 1958.⁷⁶ This treaty addresses international interest in maintaining the productivity of living marine resources and establishes a framework for parties seeking to adopt conservation measures.⁷⁷

3. International Convention for the Regulation of Whaling

The International Convention for the Regulation of Whaling⁷⁸ was concluded in 1946 and implemented in the United States in 1949 by the Whaling Convention Act.⁷⁹ The International Convention for the Regulation of Whaling establishes the International Whaling Commission (IWC), which is made up of one representative from each signatory nation.⁸⁰ The International Convention for the Regulation of Whaling authorizes the IWC to designate whale species as protected and set seasons, areas and catch limits on whaling in all oceans where whales are found.⁸¹ The IWC eventually agreed to a moratorium on commercial [30 ELR 11010] whaling beginning in 1986, with exceptions for scientific research and subsistence whaling.⁸²

4. Other International Laws and Treaties

Other international laws and treaties relating to living marine resources include the Convention on International Trade in Endangered Species of Wild Fauna and Flora,⁸³ the Fur Seal Treaty,⁸⁴ the International Dolphin Conservation Act,⁸⁵ and the Convention on the Conservation of Antarctic Living Marine Resources.⁸⁶

D. Federal Agencies Responsible for Implementing Living Marine Resource Statutes

The Department of Commerce and the DOI are the two federal agencies primarily responsible for implementing living marine resource statutes. The Department of Commerce acts through the National Oceanic and Atmospheric Administration (NOAA) in executing its environmental mission. NOAA, in turn, implements living marine resource statutes primarily through NMFS and NOS. The DOI acts through the FWS and, to a lesser extent, the National Park Service (NPS) in the living marine resources field. The U.S. Coast Guard also plays an important role in implementing living marine resource statutes through regulation and enforcement activities.

1. Department of Commerce

Administration of living marine resource laws within the Department of Commerce is delegated to NOAA.⁸⁷ NOAA is charged with conserving and managing the nation's coastal and marine resources as well as describing and predicting changes in the earth's environment.⁸⁸ Under NOAA, NMFS implements the MSFCMA⁸⁹ and shares administration of the MMPA⁹⁰ and the ESA⁹¹ with the FWS.⁹² Also under NOAA, NOS implements the MSRPA⁹³ and the CZMA.⁹⁴

2. Department of the Interior

The DOI acts primarily through the FWS to implement living marine resource mandates under its jurisdiction. The FWS shares administration of the MMPA⁹⁵ and the ESA⁹⁶ with NMFS.⁹⁷ The NPS also exercises regulatory control over living marine resources when those resources are within National Park boundaries. Glacier Bay National Park, for instance, is a 3.3-million-acre park that encircles Glacier Bay in Alaska, with marine waters constituting approximately one-fifth of the total area.⁹⁸ These waters provide essential foraging grounds for a number of marine species, including the endangered humpback whale and threatened Steller sea lion.⁹⁹ The NPS has promulgated extensive regulations covering activities within the park, including a permit requirement to operate a vessel in park waters, approach limits for whales, and speed and noise restrictions.¹⁰⁰

3. U.S. Coast Guard

The Coast Guard plays a key role in implementing living marine resource laws by enforcing the MSFCMA, the MMPA and the ESA within the EEZ and on the high seas.¹⁰¹ The Coast Guard has also promulgated regulations designed to protect living marine resources, including regulations establishing a Mandatory Ship Reporting (MSR) system for vessels entering Northern right whale areas.¹⁰² The Northern right whale MSR was established in coordination with NMFS and with the endorsement of the United Nations International Maritime Organization (IMO).¹⁰³

II. The Reach of Federal Agency Regulatory Authority Over Living Marine Resources

The U.S. Constitution places the power to execute the nation's laws in the executive branch of the federal government. The promulgation and enforcement of regulations is one of the primary means by which federal agencies execute [30 ELR 11011] national law. The Supreme Court has held that Congress has the discretion to delegate authority to administrative agencies to "fill in the details" of statutes by regulation, provided that it supplies intelligible standards for the exercise of that authority.¹⁰⁴ The authority to fill the gaps in statutory law is essential to living marine resource management, which requires flexible and timely responses to changing situations by federal officials with expertise in those matters.¹⁰⁵

A. Constitutional Reach

The authority to legislate, including the authority to enact wildlife laws, derives from the Constitution.¹⁰⁶ Congress, therefore, may only enact wildlife laws when the Constitution empowers it to do so. Three principal sources of constitutional authority for federal wildlife regulation have been recognized by the Supreme Court: the Treaty Clause, the Property Clause, and the Commerce Clause.¹⁰⁷

1. Treaty Clause

One of the earliest Supreme Court decisions to consider the limits of federal authority over living marine resources was The Abbey Dodge¹⁰⁸ in 1912. The vessel Abbey Dodge was fined under a federal statute for taking sponges from the waters of the Gulf of Mexico and the Straits of Florida out of season. The vessel owner argued that, insofar as the statute applied to sponges taken in state territorial waters, it was an unconstitutional infringement on the authority of the states.¹⁰⁹ Finding that states own "the beds of all tide waters within [their] jurisdiction, . . . the tide waters themselves, and the fish in them," the Court held that Congress lacked the authority to regulate the taking of sponges within state waters and, therefore, the statute only applied beyond the territorial waters of the states.¹¹⁰ Although The Abbey Dodge did not involve application of the treaty power, the Supreme Court's reliance on the doctrine of state ownership in that case set the stage for its seminal treaty power decision in Missouri v. Holland¹¹¹ eight years later.

The Supreme Court soundly rejected the theory that state ownership precludes federal wildlife regulation in Missouri.¹¹² In Missouri, the state sought to restrain a U.S. game warden from enforcing the Migratory Bird Treaty Act and regulations promulgated by the U.S. Department of Agriculture pursuant to the Act. Comparing the state's asserted ownership interest in wild birds within its borders but possessed by no one to "leaning upon a slender reed," the Supreme Court upheld the statute as a valid exercise of the federal government's treaty power.¹¹³

More recently, in Palila v. Hawaii Department of Land & Natural Resources,¹¹⁴ the district court addressed the reach of the treaty power in the context of an action brought under the ESA against the Hawaii Department of Land and Natural Resources for maintaining herds of feral sheep and goats that degraded critical habitat of the endangered Palila. Hawaii argued that it had exclusive state sovereignty over the Palila under the Tenth Amendment because the bird exists nowhere but in Hawaii. Noting that the "argument is presented in a novel setting," the court nonetheless held that the "Tenth Amendment does not restrict enforcement of the Endangered Species Act, both because of the power of Congress to enact legislation implementing valid treaties and because of the power of Congress to regulate commerce."¹¹⁵

2. Property Clause

The federal government owns nearly one-third of the land in the United States and exercises sovereignty over living marine resources throughout its EEZ.¹¹⁶ The federal government has exercised control over wildlife on its lands for over a century¹¹⁷ and had for decades when the Supreme Court decided Hunt v. United States¹¹⁸ in 1928. The suit was brought by the United States after Arizona state officials began arresting U.S. officers who, under orders from the Secretary of Agriculture, were removing deer that were harming the Kaibab National Forrest by overbrowsing. The Supreme Court upheld the power of the United States to protect its property, "the gamelaw or any other statute of the state . . . notwithstanding."¹¹⁹

In New Mexico State Game Commission v. Udall,¹²⁰ the Tenth Circuit declined to accept the position that Hunt required a showing of actual harm to its property before the federal government could take wildlife management action contrary to state law. The action in Udall was brought after the Secretary of the Interior directed the killing of deer in Carlsbad Caverns National Park for research purposes without compliance with New Mexico game laws. Despite the objections of several state wildlife agencies asserted through amici brief, the court upheld the power of the Secretary to determine which animals may be detrimental to the use of the park.¹²¹ New Mexico appealed and the Supreme Court denied certiorari.¹²²

Despite answering the actual harm issue, the question whether some nexus between regulating wildlife under the [30 ELR 11012] Property Clause and protecting federal land remained after Udall. The question was definitively answered in the negative in Kleppe v. New Mexico.¹²³ In Kleppe, the state of New Mexico sued to have the Wild Free Ranging Horses and Burros Act¹²⁴ declared unconstitutional after the Bureau of Land Management (BLM) demanded the return of wild burros removed from BLM lands by state authorities in violation of the Act. The Supreme Court unanimously overturned the lower court's decision that a federal land protection nexus was necessary to regulate wildlife under the Property Clause, holding that the protection of federal land is not a necessary predicate to wildlife regulation under the Property Clause. The Court stated that, while the furthest reaches of the Property Clause have not been definitively resolved, it necessarily includes the power to protect and regulate wildlife on federal lands.¹²⁵

Although Kleppe is the Supreme Court's latest word on the power of the federal government to regulate wildlife under the Property Clause, other federal courts have considered the reach of the Property Clause in other contexts. In United States v. Brown,¹²⁶ the Eighth Circuit held that agency regulations prohibiting hunting and firearms in national parks was a proper exercise of Property Clause authority delegated to the NPS under the National Park Service Act. The National Park Service Act allows the Secretary of the Interior to promulgate "such rules and regulations as he may deem necessary for the use and management of the parks."¹²⁷ In Michigan United Conservation Clubs v. Lujan,¹²⁸ the property power was held to justify federal laws restricting state land uses that affected wildlife on federal property. The property power has also been relied on to prevent fencing of private lands that hinders wildlife migration¹²⁹ and to restrict the use of boats near a federal wilderness area.¹³⁰ Finally, in Palila, the federal district court observed that the importance of preserving an endangered species such as the Palila bird might rise to the level of a federal property interest.¹³¹

3. Commerce Clause

The Commerce Clause has been consistently found to provide authority for a wide range of federal wildlife regulation and provides a strong constitutional underpinning for most federal living marine resource regulation.¹³² In fact, the first Supreme Court decision to address the extent of federal regulatory authority over wildlife provided by the Commerce Clause arose in the living marine resource context in 1977. The Enrollment and Licensing Act established a federal license program for vessels engaged in coastal fishing.¹³³ The authority of the federal government to regulate the taking of fish in state waters under this Act was challenged in Douglas v. Seacoast Products, Inc.¹³⁴ The Supreme Court held that, despite doubts expressed in earlier opinions of the Court concerning the power of Congress to regulate fishing in state waters, "there can be no question today that such power exists where there is some effect on interstate commerce."¹³⁵ The Court found that "the movement of vessels from one state to another in search of fish, and again to processing plants, is certainly activity which Congress could conclude affects interstate commerce."¹³⁶

The Supreme Court held that the Migratory Bird Treaty Act was a valid exercise of federal power under the Commerce Clause as well as the treaty power in Andrus v. Allard.¹³⁷ The federal district court in Palila relied in part on the Commerce Clause as a basis of authority for federal regulation of a species of bird that was not migratory and was only found within the state of Hawaii.¹³⁸ In considering the potential effect of protecting Palila habitat on interstate commerce and interstate movement of persons, the court considered naturalists and scientists who travel to Hawaii to study the birds.¹³⁹

The Ninth Circuit upheld the Bald and Golden Eagle Protection Act¹⁴⁰ in United States v. Bramble¹⁴¹ as a proper exercise of Commerce Clause authority, reasoning that even purely intrastate commerce could affect the eagles' overall survival and, therefore, interstate commerce. The Supreme Court has held that wholly local activities can be regulated under the Commerce Clause if they directly or indirectly have a substantial effect on interstate commerce.¹⁴² The Commerce Clause has, accordingly, been held to serve as a proper basis for regulation under the ESA of species that never cross state boundaries.¹⁴³

The reach of Congress' authority to regulate activities under the Commerce Clause was re-examined in 1995 by the Supreme Court in United States v. Lopez.¹⁴⁴ The Court identified three broad categories of activities that may be regulated by Congress under its interstate commerce authority: the use of channels of interstate commerce; the instrumentalities of, or persons or things in, interstate commerce; and [30 ELR 11013] activities having a substantial relation to interstate commerce.¹⁴⁵ The Court cautioned that, where economic activity substantially affects interstate commerce, legislation regulating that activity should be upheld on review even though the activity may be purely local.¹⁴⁶ The Court advised that a reviewing court need only determine whether a rational basis exists for concluding that a regulated activity substantially affects interstate commerce.¹⁴⁷ The D.C. District Court in National Ass'n of Home Builders v. Babbitt¹⁴⁸ applied the principles announced in Lopez in concluding that Congress has validly exercised its Commerce Clause power to regulate wildlife as "things" that affect interstate commerce. A variety of wildlife regulations have been upheld on the basis of Commerce Clause authority since Lopez was decided, indicating that Lopez will not significantly curtail promulgation of living marine resource regulations.¹⁴⁹

4. Retained State Power

The Constitution reserves to the states all powers not delegated to the federal government.¹⁵⁰ Accordingly, in its 1979 Hughes v. Oklahoma¹⁵¹ decision, the Supreme Court held that states have primary authority to conserve, manage, and protect wildlife within their borders provided that those measures do not discriminate against interstate commerce. The Federal Aid in Wildlife Restoration Act and the Federal Aid in Sport Fish Restoration Act recognize this retained state authority.¹⁵² Most of the primary living marine resource statutes, however, were enacted under powers delegated by the Constitution and preempt state law.¹⁵³

B. Congressional Delegation of Power

Congress has discretion to delegate its legislative authority to federal administrative agencies to "fill in the details" of statutes by promulgating regulations, provided that Congress supplies agencies with intelligible standards for doing so.¹⁵⁴ Congressional delegation of authority to federal agencies is particularly important in the field of living marine resource regulation given the scientific complexities involved in the management of marine species and the wide range of stakeholders that depend on quick regulatory action, including fishermen, researchers, and conservationists.¹⁵⁵ Federal administrative agencies develop a significant portion of the body of living marine resource law by promulgating regulations governing activities that directly and indirectly affect those resources and by issuing interpretative and procedural rules that guide agency decisionmaking.

The National Park Service Act provides a good example of congressional delegation of authority to an agency in its organic statute. The Act authorizes the Secretary of the Interior to promulgate "such rules and regulations as he deems necessary for the use and management of the parks."¹⁵⁶ In Brown, the Eighth Circuit held that NPS regulations prohibiting firearms and hunting in national parks were a proper exercise of Property Clause authority delegated to the agency under its organic statute.¹⁵⁷ In Christy v. Hodel,¹⁵⁸ the Ninth Circuit held that the ESA's delegation of legislative authority to the Secretary of the Interior to promulgate regulations for the conservation of listed species was proper because the ESA defined "conservation" and limited the authority to regulations that would promote the conservation of listed species. A U.S. Army Corps of Engineers' definition of "waters of the United States" that included isolated waters and wetlands was upheld as a proper application of authority delegated by the CWA in that the purposes of the Act provide sufficiently precise standards to determine what the phrase means.¹⁵⁹

C. Limits

The Constitution and principles embodied in administrative and international law provide limits on the ability of an agency to regulate living marine resources.

1. Constitutional Limits

The Constitution both provides and limits the power of Congress to enact laws, including wildlife legislation. Likewise, the Constitution establishes and circumscribes federal agency authority to promulgate wildlife regulations. The Takings Clause and the Due Process Clause provide two important constitutional limitations on these powers. The Takings Clause of the Fifth Amendment requires just compensation when private property is taken for public use.¹⁶⁰ The Fifth Amendment also guarantees that no person will be [30 ELR 11014] deprived of property without due process of law.¹⁶¹ Finally, the Equal Protection Clause requires that no state may deny to any person the equal protection of the laws.¹⁶²

The Fifth Circuit held in Louisiana ex rel. Guste v. Verity¹⁶³ that an NMFS rule that regulated fishers differently based on boat size was aimed at a legitimate government interest in reducing sea turtle mortality, did not intrude on a fundamental right or impose a suspect classification, and, therefore, did not violate the Equal Protection Clause. An NMFS program that placed observers on fishing boats regulated under the MMPA was upheld by the Ninth Circuit in Balelo v. Baldrige¹⁶⁴ as a reasonable means to protect dolphins despite claims that the program resulted in unconstitutional searches under the Fourth Amendment. Finally, a regulation that denied subsistence hunting to a Native American group not dependent on hunting for subsistence purposes, but which allowed another Native American group to hunt that depended on subsistence hunting, was held by the Ninth Circuit not to violate the Equal Protection Clause in United States v. Nuesca.¹⁶⁵

2. Administrative Law

Federal agencies regulate activities that affect living marine resources under the authority of applicable statutes.¹⁶⁶ The authority of an administrative agency to regulate those activities is determined by looking to the laws that empower it.¹⁶⁷ Whether an agency is empowered to issue a particular regulation is, therefore, a question of statutory construction at the outset.¹⁶⁸ Federal courts are the final authorities on issues of statutory construction.¹⁶⁹

Agency regulations may be overturned by a federal court on a number of grounds, however, including constitutionality, failure to comply with applicable law, exceeding the scope of authority, and failure to act reasonably in factual determinations or discretionary functions. The standard of review applicable to an agency action depends on the basis of the challenge, and may be prescribed by the substantive law authorizing the action, the agency's organic statute, or the Administrative Procedure Act (APA).¹⁷⁰

a. Questions of Law

Federal courts generally show deference to the construction given a statute by the agency charged with administering it if the construction is permissible and reasonable.¹⁷¹ In Chevron, the Supreme Court stated that "a federal agency and any reviewing court must give effect to the 'unambiguously expressed' intent of Congress; if congressional intent is not clear, a reviewing court will accord 'considerable weight' to an agency's construction of the statutory scheme it is entrusted to administer."¹⁷² The promulgation of a living marine resource regulation by a federal agency should, in the absence of specific statutory authority, be upheld by a reviewing court if it is based on a construction of the statutory scheme that is both reasonable and permissible.

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,¹⁷³ the Supreme Court found that an FWS regulation defining the ESA prohibition on "harm" to include a modification of protected species habitat was reasonable, given the ordinary meaning of the term, and a permissible construction of the Act. A Corps interpretation of the CWA to require permits for the discharge of materials into wetlands adjacent to "waters of the United States" was upheld by the Supreme Court as a reasonable construction consistent with the Act's language, policy, and legislative history.¹⁷⁴ By contrast, an NMFS regulation that allowed reconsideration of a tuna import embargo designed to protect dolphins killed by foreign commercial fishers was invalidated by the Ninth Circuit because it conflicted with the language and purpose of the MMPA.¹⁷⁵ Federal agencies receive even greater deference when interpreting their own regulations.¹⁷⁶

b. Questions of Fact

When an agency engages in formal rulemaking or adjudication, a court will defer to the agency if substantial evidence supports the agency's decision.¹⁷⁷ In informal rulemaking and other informal agency actions, an agency's factual and discretionary determinations will generally be upheld by a reviewing court unless the determinations are arbitrary and [30 ELR 11015] capricious.¹⁷⁸ An agency will generally be found to have acted arbitrarily and capriciously if it fails to act rationally or consider relevant information during its decisionmaking.¹⁷⁹ Agencies are considered to have the expertise that courts lack to make complex factual decisions, however, and courts are normally highly deferential to agencies when applying the arbitrary and capricious standard.¹⁸⁰

The Ninth Circuit in Dioxin/Organochlorine Center v. Clarke¹⁸¹ found EPA's determination of the amount of dioxin that could be released into a river under the CWA not arbitrary or capricious since the Agency considered scientific reports and other evidence of the effects of release on aquatic life and other wildlife. When the U.S. Forrest Service developed a forestwide management plan that would allow logging in habitat used by grizzly bears, gray wolves, bald eagles, and peregrine falcons, the Ninth Circuit found that the Forest Service had acted arbitrarily and capriciously in not providing the FWS with sufficient information during an ESA § 7 consultation.¹⁸² In Northern SpottedOwl v. Hodel,¹⁸³ the FWS' determination not to list the owl as endangered or threatened was found to be arbitrary and capricious and contrary to law because all of the expert opinion indicated that the owl was threatened with extinction. Similarly, when the FWS decided not to change a grizzly bear population from threatened to endangered, the D.C. District Court found the decision arbitrary and capricious for failure to sufficiently explain how it applied statutory listing criteria and for drawing conclusions not supported by evidence in the record.¹⁸⁴

3. International Law

The reach of federal regulatory authority over living marine resources is defined, in part, by geography, maritime boundaries, and applicable international law. An important characteristic of living marine resources, from an international law perspective, is the migratory, transboundary nature of many marine species.¹⁸⁵ In their treatise on The Law of the Sea, R.R. Churchill and A.V. Lowe state that it is a "necessity for any regulation of marine fisheries to have a substantial international component . . . because much fishing takes place outside what has traditionally been regarded as the territory of [nations]."¹⁸⁶ The limits of federal regulatory authority over living marine resources are established, in part, by international law. The international law governing international maritime actions and relations is chiefly embodied in UNCLOS¹⁸⁷ and associated international agreements.¹⁸⁸

UNCLOS provides that the sovereignty of a nation extends over its territorial sea, which may be up to 12 nautical miles from its shore.¹⁸⁹ It further provides that nations have sovereign rights to exploit, conserve, and manage living and non-living natural resources within their EEZs, which may extend to 200 nautical miles from shore.¹⁹⁰ As to the high seas, UNCLOS provides that all nations are required to take all necessary measures with respect to their citizens to ensure the conservation of living resources on the high seas.¹⁹¹

The sovereign rights of nations over living marine resources within their territorial seas and EEZs are subject to the rights of other nations, including the right of innocent passage and the right to lay pipelines and cables within the EEZ.¹⁹²

D. Promulgation Under the Statutes

The surge of federal wildlife and other environmental protection laws in the 1970s led to swelling congressional mandates to federal agencies to regulate in an increasingly complex area of the law. Growth in federal living marine resource regulation matched that of other federal environmental regimes. At the same time, a counter-movement by land-owners and others known as the "Sagebrush Rebellion" began to take root. The proponents of the movement asserted that the federal government lacked constitutional authority to assert ownership over the nation's land and resources, and that the federal government's interests in those resources were inferior to that of the states. This powerful polarization of interests continues, though the landscape is increasingly marked by mixed and emerging interests.¹⁹³

Three of the primary living marine resource statutes that provide federal agencies with broad rulemaking authority to implement their provisions are the MMPA, the MSFCMA, and the ESA.¹⁹⁴ The following sections describe cases that address agencies' general authority to regulate living marine resources under these statutes.

1. MMPA

The MMPA is the oldest of the major living marine resource statutes and, with its commercial fisheries, scientific research, public display, and incidental take provisions, probably has the broadest statutory framework of the three. It has been described as "groundbreaking . . . one of the toughest federal wildlife protection laws to date."¹⁹⁵ The MMPA provides the Secretaries of Commerce and the Interior authority to promulgate "such regulations as are necessary and appropriate to carry out the purposes" of the Act.¹⁹⁶

The Secretary of Commerce relied on the broad rulemaking power of the MMPA to promulgate regulations in 1981 that required commercial fishers to carry government [30 ELR 11016] observers on fishing trips.¹⁹⁷ The purpose of the regulations was, in part, to allow observers to record information that could be later used in enforcement proceedings.¹⁹⁸ These regulations were challenged by captains of fishing vessels who used purse seine nets to catch yellowfin tuna by setting the nets around visible schools of dolphins that swim in connection with the tuna in the eastern tropical Pacific.¹⁹⁹ The captains argued that the observer program amounted to an unauthorized and impermissible search in violation of the Fourth Amendment.²⁰⁰ The federal District Court for the Southern District of California entered a declaratory judgment invalidating the regulation.²⁰¹ The Ninth Circuit heard the appeal en banc in Balelo and reversed the lower court.²⁰² Although not expressly authorized by the Act, the Ninth Circuit held that the broad rulemaking power delegated by Congress to the Secretary under the MMPA implicitly authorized the regulations.²⁰³ The court further found that the closely regulated industry exception to the Fourth Amendment applied.²⁰⁴ The captains appealed, but the Supreme Court denied certiorari.

Regulations promulgated by the FWS in 1974 to implement the MMPA's subsistence and handicraft exemption for Alaskan natives define handicrafts to include only those of the type commonly produced before enactment of the MMPA.²⁰⁵ After FWS special agents seized craft items made from sea otter pelts believed not to meet the regulatory criteria, the Aleut maker of the items brought suit asserting that the regulation was promulgated in excess of statutory authority.²⁰⁶ The court in Katelnikoff v. U.S. Department of the Interior²⁰⁷ found that, based on the broad authority, strongly stated conservation purpose, and clear language and legislative history of the MMPA, the regulation was a "valid expression of the Secretary's general rulemaking authority."²⁰⁸ These regulations were amended in 1990 to exclude any handicrafts made from sea otters on the ground that Alaskan natives had not produced handicrafts from sea otters within living memory.²⁰⁹ A Tlingit Alaskan native living in Sitka whose sea otter parka and hat were seized by the FWS challenged the regulation in Didrickson v. U.S. Department of the Interior²¹⁰ on the basis that it was contrary to congressional intent expressed in the MMPA to preserve traditional forms of native handicraft. The district court declared the regulation inconsistent with the plain language of the MMPA, which does not single out particular species, and an improper attempt to restrict the native taking of sea otters without the statutory prerequisite of designating them "depleted"²¹¹ under the Act.²¹²

In United States v. Clark,²¹³ an Alaskan native who shot and killed nine walrus but only kept certain parts of each was prosecuted for violating an FWS regulation²¹⁴ that prohibited Alaskan natives from wasting a "substantial portion" of marine mammals taken under the MMPA native exemption.²¹⁵ Clark appealed, arguing that the regulation conflicts with congressional intent and is unconstitutionally vague.²¹⁶ Stating that it must show deference to the interpretation of the agency charged with a statute's interpretation, the Ninth Circuit upheld the regulation upon finding it consistent with congressional intent, within the scope of statutory authority, and sufficiently precise to overcome the vagueness challenge.²¹⁷

Under the MMPA, Congress imposed a mandatory embargo on the importation of yellowfin tuna from countries whose commercial fishing fleets' kill-rate of dolphins was more than two times that of the U.S. fleet for a given season or whose total eastern spinner dolphin mortality exceeded 15% of the total number of marine mammals killed by that fleet during the course of the year.²¹⁸ Pursuant to its statutory authority, NMFS promulgated regulations providing that it could "reconsider" the embargo status of a nation based on data from only the first six months following a year in which the limits were exceeded by an exporting nation.²¹⁹ The regulation was challenged in Earth Island Institute v. Mosbacher²²⁰ for violating the plain language of the MMPA, which required reviews of an entire year of data. The regulation was found inconsistent with the statutory language and congressional purpose of the Act and the importation of yellowfin tuna from Mexico under the "reconsideration" provisions was enjoined.²²¹

The last case to review a challenge to the promulgation of regulations under the MMPA was the Fifth Circuit Strong v. United States²²² decision in 1993. Strong followed NMFS' promulgation of regulations that prohibited the feeding of marine mammals in the wild by including feeding within the definition of "take" under the MMPA.²²³ Operators of a commercial tour boat business that offered dolphin-feeding [30 ELR 11017] cruises challenged NMFS' authority to regulate the feeding of wild dolphins in Strong.²²⁴ The Fifth Circuit upheld the regulation as a reasonable interpretation of the MMPA within the authority of the agency.²²⁵

2. MSFCMA

The MSFCMA delegates to the Secretary of Commerce, and NMFS in turn, broad authority to promulgate "necessary and appropriate" regulations governing fisheries within the U.S. exclusive economic zone,²²⁶ which, for purposes of the MSFCMA, generally extends from 200 to 300 nautical miles off the U.S. coast.²²⁷ The Act establishes a system of eight Regional Fishery Management Councils composed of members who represent the interests of the states included in that region.²²⁸ Each of the Regional Councils prepares and submits a FMP to NMFS for each fishery needing management within its geographical area of authority.²²⁹ NMFS reviews the plans and amendments to the plans for consistency with national standards and "other applicable law"²³⁰ and, if a plan meets these criteria, NMFS will promulgate regulations implementing the plan after the statutory comment period.²³¹ NMFS may independently prepare a plan only if the Regional Fishery Management Council fails to do so within a reasonable time or if NMFS disapproves a submitted plan and the council fails to submit a revised version.²³²

Shortly after enactment of the MSFCMA, the state of Maine brought action against NMFS challenging the 1977 herring quotas for Georges Bank in Maine v. Kreps.²³³ The state argued that NMFS impermissibly considered preexisting international commitments and historical fishing patterns in setting the 1977 optimum yield for Georges Bank herring at a level exceeding domestic fishing needs, thereby allowing foreign fishing fleets to fish on Georges Bank.²³⁴ The First Circuit Court of Appeals explained that the MSFCMA's broad grant of discretionary authority and flexibility to "deal effectively with different situations as they arise" is tempered by the requirement that NMFS not act in an arbitrary manner and comply with statutory standards and procedures.²³⁵ The court nonetheless found NMFS' explanation that it used preexisting international commitments as only the starting point in its determination of an optimum yield, but also considered numbers that would allow the herring stock to rebuild and the diplomatic harm to the United States of departing from existing international commitments, provided a sufficient basis to determine that it did not act in an arbitrary or capricious manner or contrary to law.²³⁶

NMFS promulgated a regulation in 1990 that, in accordance with the recommendations of the South Atlantic and Gulf Fishery Management Councils, banned the use of drift gillnets in the Atlantic King Mackerel Fishery.²³⁷ In contrast to hook-and-line fishing, drift gillnet fishing uses large, drifting nets that snag fish by the gills when fish attempt to swim through them.²³⁸ Various members of the fishing industry challenged the regulations in C & W Fish Co. v. Fox²³⁹ on the grounds that the ban was not supported by the record and did not comply with the MSFCMA. The D.C. Circuit Court of Appeals upheld the regulation, finding that the ban was supported by evidence in the record of a significant problem with bycatch of nontargeted species and that it satisfied the statutory criteria that allocation of fishing privileges be fair, equitable, and reasonably calculated to promote conservation while achieving optimum yield from the fishery.²⁴⁰ The court found adequate support in the record for NMFS' determination that the ban benefits hook-and-line fishermen while imposing only a slight burden on drift gillnet fishermen, who could easily re-rig their vessels for other types of nets or hook-and-line fishing.²⁴¹

After NMFS promulgated regulations implementing the Sablefish and Halibut Fishery Management Plans in waters off Alaska in 1993,²⁴² fishermen challenged the regulations on the basis that they were arbitrary and capricious for allocating fishing quotas based on three-year-old data and that no notice or hearing was provided to Alaska before asserting federal jurisdiction over its waters as required by the MSFCMA.²⁴³ The Ninth Circuit Court of Appeals in Alliance Against IFQs v. Brown²⁴⁴ held that, despite the statutory requirement that the FMPs account for present participation in fisheries, the regulation was not arbitrary or capricious since the participants considered were roughly present when the regulation was first proposed and consideration of [30 ELR 11018] fishery use during the promulgation process would have encouraged the type of speculative overinvestment and over-fishing that the Act sought to restrain.²⁴⁵ The court further held that, even if the FMPs interfered with Alaska's sovereign interest in regulating fishing in state waters, the plans did not infringe on any legally protected interest of individual fishermen for which they could seek judicial relief.²⁴⁶

In Southeastern Fisheries Ass'n v. Mosbacher,²⁴⁷ another case involving state sovereignty, commercial fishing associations challenged provisions of the regulations implementing the Gulf of Mexico red drum FMP that required, inter alia, compliance with the laws of the state where a catch was landed even if the vessel was not registered in that state. Surprisingly, the court held that requiring vessels not registered with a state to comply with its laws clearly exceeded the authority of the MSFCMA given that those states could only enforce their laws on vessels registered within their states.²⁴⁸

The geographic reach of federal regulatory authority was tested, to an extent, in National Fisheries Institute, Inc. v. Mosbacher.²⁴⁹ Following 10 contentious years of development, NMFS promulgated the Atlantic Ocean billfish FMP, which prohibited possession of billfish within the Atlantic EEZ by commercial fishing vessels, the sale of a billfish harvested from the Atlantic EEZ, or the possession of any bill fish by seafood dealers without documentation showing that it was not harvested in the Atlantic management unit.²⁵⁰ Commercial fishing interests challenged the regulations, arguing that NMFS lacked the authority to criminalize possession within the EEZ of fish caught on the high seas or to regulate the seafood marketplace.²⁵¹ The court held that, in determining the scope of regulatory authority provided by a statute, it must first look to whether Congress spoke to the precise issue.²⁵² If congressional intent is not clear, the standard of review is whether the agency's construction of the statute is permissible.²⁵³ Noting that Congress granted the agency broad general authority to promulgate "necessary and appropriate" regulations,²⁵⁴ the court upheld the regulations as a permissible construction of authority provided by the MSFCMA.²⁵⁵

Bycatch, the incidental take of nontarget species during commercial fishing, is a significant problem in living marine resource conservation.²⁵⁶ NMFS and the fishery management councils have promulgated a number of regulations that require the use of bycatch reduction devices (BRDs) designed to reduce the collateral harm to nontarget species caused by commercial fishing operations, including turtle excluder devices (TEDs) in shrimp and flounder fisheries and fish excluder devices (FEDs) to reduce the bycatch of groundfish in the northern shrimp fishery.²⁵⁷ Promulgated to restore the red snapper population in the Gulf of Mexico, Amendment 9 to the Gulf of Mexico shrimp FMP requires shrimp trawlers in the fishery to use BRDs that allow juvenile red snapper to escape from shrimp nets.²⁵⁸ Representatives of the shrimp industry challenged the regulations in Florida Wildlife Federation v. Daley,²⁵⁹ arguing that BRDs are prohibitively expensive and restoration of the red snapper population could be achieved by simply further restricting the red snapper fishery. Stating that it may only set aside a regulation promulgated under the MSFCMA pursuant to the traditional arbitrary and capricious standard set forth in the APA,²⁶⁰ the court upheld the regulation, finding that NMFS' balancing of the impact of the regulation on fishing communities, costs involved, and ecological benefits was not arbitrary or capricious.²⁶¹

Regulation under the MSFCMA often involves the consideration of components of the ESA or the MMPA, such as the ESA requirement to conduct ESA § 7 consultations on federal actions that may jeopardize listed species or adversely affect critical habitat.²⁶² In 1996, NMFS promulgated regulations pursuant to the MSFCMA amending the Pacific Coast Groundfish Management Plan to allocate groundfish catches of whiting off Washington's coast to four Indian tribes in recognition of their treaty rights.²⁶³ This amendment was contrary to the recommendations of the Pacific Fishery Management Council, leading fishing trawlers and seafood processors to challenge the regulations in Washington v. Daley²⁶⁴ on the ground that the regulations violated the MSFCMA by failing to comply with the ESA requirement to adequately consider the effects of the plan on threatened Snake River fall chinook taken as bycatch in the whiting fishery during ESA § 7 consultation. The Ninth Circuit explained that, when reviewing regulations promulgated under the MSFCMA, its only function is to determine whether NMFS acted in an arbitrary and capricious manner in promulgating such regulations, and it may not substitute its judgment for that of the agency.²⁶⁵ Finding that NMFS followed the steps required in an ESA § 7 consultation and that its conclusions were not arbitrary and capricious, the [30 ELR 11019] court held that NMFS did not violate the ESA in promulgating the regulations at issue.²⁶⁶

3. ESA

Enactment of the ESA followed by less than one year passage of the MMPA and, in many ways, mirrors the MMPA's "take" prohibitions and the broad rulemaking authority to implement those protections.²⁶⁷ The ESA provides powerful protection and regulatory authority for both terrestrial and marine species listed as threatened or endangered.²⁶⁸

The scope of the ESA "take" prohibition has been, to a significant extent, defined by NMFS and the FWS regulations.²⁶⁹ NMFS, for instance, promulgates take prohibitions and other protective regulations for threatened species under its jurisdiction on a species-by-species basis,²⁷⁰ while the FWS extends the take prohibitions to all threatened species under its jurisdiction by blanket rule.²⁷¹ This blanket rule was challenged and upheld by the D.C. Circuit in Sweet Home Chapter.²⁷² Both agencies have also promulgated regulations defining the term "harm," a form of take under the ESA.²⁷³ The FWS' definition of "harm" as "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breathing, feeding, or sheltering" was challenged and upheld by the Ninth Circuit in Palila²⁷⁴ and, in a separate case, by the Supreme Court in Babbitt v. Sweet Home Chapter.²⁷⁵ In Sweet Home, the Supreme Court stated that "the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid."²⁷⁶

The FWS has relied on its regulatory authority to establish a program to import an experimental population of gray wolves from Canada and release them in Yellowstone National Park.²⁷⁷ These regulations were upheld by the Ninth Circuit in United States v. McKittrick²⁷⁸ and by the Tenth Circuit in Wyoming Farm Bureau Federation v. Babbitt.²⁷⁹ In McKittrick, the defendant challenged his criminal ESA conviction for taking one of the imported wolves by attacking the regulations establishing the program.²⁸⁰ McKittrick argued that the regulation improperly conferred endangered species status on wolves not listed as endangered in their native Canada.²⁸¹ Ruling that the FWS' interpretation of the ESA was entitled to deference under Chevron, the Ninth Circuitupheld the regulations as a proper exercise of the Secretary's authority.²⁸² The court noted that gray wolves are protected by the ESA based on where they are found, not where they originate.²⁸³ Similarly, in Wyoming, the Tenth Circuit found that the regulations are a proper means of protecting and recovering the gray wolf.²⁸⁴

NMFS' regulations requiring the use of TEDs²⁸⁵ in the nets of shrimp trawlers to protect threatened and endangered sea turtles were challenged by shrimpers in Louisiana ex rel. Guste.²⁸⁶ The plaintiffs argued that the regulations were arbitrary and capricious for imposing a significant regulatory burden while failing to effectively protect turtles in inshore waters.²⁸⁷ The Fifth Circuit disagreed, holding that the regulations were adequately supported by the record and a rational means of protecting turtles.²⁸⁸

Following the Supreme Court's decision in Lopez, the Commerce Clause authority underlying the ESA and a number of implementing regulations has been scrutinized in accordance with the principles set forth in that opinion.²⁸⁹ FWS regulations that prohibit the take of red wolves,²⁹⁰ for instance, ran head-on into North Carolina legislation enacted in 1994 that authorized the take of red wolves on private [30 ELR 11020] lands.²⁹¹ North Carolina counties brought action against the FWS in Gibbs v. Babbitt,²⁹² alleging that its regulations violate the Tenth Amendment.²⁹³ The federal district court found that the record clearly demonstrated that red wolves were "things in interstate commerce" which substantially affect interstate commerce based on their tourism value.²⁹⁴ The court found irrelevant that the threat to the red wolves came purely from intrastate takings.²⁹⁵ The federal district court upheld the regulations, that preempted the conflicting state law, as a legitimate exercise of federal power under the Commerce Clause.²⁹⁶

In Building Industry Ass'n v. Babbitt,²⁹⁷ a California building industry group challenged the listing of purely intrastate fairy shrimp with no market value under Lopez, arguing the lack of an interstate commerce nexus and infringement with state sovereignty over land use. Noting that the protection "preserves possibilities of interstate commerce" in the species and interstate movement of persons who travel to study them, the D.C. District Court upheld the listing as a proper exercise of Commerce Clause authority.²⁹⁸

Finally, in National Ass'n of Home Builders, land developers relied on Lopez to challenge the application of the ESA's taking prohibitions to the Delhi Sands Flower-Loving Fly, which is found only in California.²⁹⁹ The D.C. Circuit upheld the application of ESA taking prohibitions to the fly as constitutional under Congress' Commerce Clause power.³⁰⁰ The Supreme Court denied certiorari.³⁰¹

4. Promulgation Under Other Statutes

Regulations protecting living marine resources have been promulgated under the authority of numerous other statutes, including NPS regulations protecting humpback whales in Glacier Bay National Park³⁰² and Coast Guard mandatory ship reporting regulations designed to protect right whales from vessel strikes in or near their critical habitat.³⁰³

E. Narrowing Scope of Agency Authority?

The Supreme Court's landmark decision on the scope of delegated regulatory authority is Chevron.³⁰⁴ In Chevron, the Supreme Court held that, when reviewing an agency's construction of a statute, a court must first ask "whether Congress has directly spoken to the precise question at issue."³⁰⁵ If the intent of Congress is clear on that precise issue, it must be given effect.³⁰⁶ If the statute is silent or ambiguous on that issue, however, the court must defer to a permissible agency interpretation of the statute.³⁰⁷ Accordingly, determining whether an agency has the authority to regulate a particular activity or in a specific area is, at the outset, a question of statutory construction.³⁰⁸

Application of the principles annunciated in Chevron was at the center of two recent decisions in which federal agency regulators were found to have overstepped the bounds of congressionally delegated authority: Brown & Williamson³⁰⁹ and American Trucking.³¹⁰ To the extent that these cases reflect a judicial trend toward a narrowing of agency authority, as has been suggested by dissenting judges and various commentators, these and similar decisions could have far-reaching implications in the fluid realm of living marine resource regulation.³¹¹

1. Brown & Williamson

For 75 years the FDA maintained, at congressional hearings and in agency statements, that it lacked regulatory jurisdiction over tobacco products.³¹² The FDA reversed course in August 1996, promulgating regulations that restricted the sale of cigarettes to minors and limited the promotion of tobacco products.³¹³ The FDA asserted jurisdiction on the basis that cigarettes are drug delivery "devices"³¹⁴ and, therefore, subject to regulation as medical devices under the Food, Drug, and Cosmetics Act (FDCA).³¹⁵ Cigarette makers and retailers sued, challenging the FDA's assertion of jurisdiction over tobacco products.³¹⁶ The federal district court held that the FDA had jurisdiction under the Act to regulate tobacco products as "devices," but lacked authority to restrict advertising.³¹⁷ The Fourth Circuit granted interlocutory appeal in Brown & Williamson.³¹⁸

[30 ELR 11021]

Framing the issue as whether Congress intended to delegate jurisdiction to the FDA to regulate tobacco products, the court stated that it would rely on "traditional tools of statutory construction . . . as directed by Chevron."³¹⁹ The court first turned to the FDA's claim that cigarettes meet the Act's definition of "device." The court found against the FDA based on the precise wording of the statutory definitions of "drug" and "device," both of which require that effects on the body be intended.³²⁰ The majority observed that no court has ever found a product is intended for a particular effect in the absence of consistent manufacturer's claims.³²¹

The court next turned to an examination of whether tobacco products fit into the overall regulatory scheme of the Act, finding great significance in the FDA's failure to designate cigarettes as Class I, II, or III devices based on their degree of dangerousness. In light of the FDA's finding that cigarettes present a potentially unreasonable risk of illness or injury, the fact that all three classes require reasonable assurances of safety under the Act led the court to conclude that the FDA would have to ban cigarettes; a requirement the FDA indicated it had no intent to fulfill.³²² The court concluded that the FDA's "contortions" and "avoidance of statutory directives" demonstrated Congress did not intend to regulate tobacco under the Act.³²³

Finally, the court considered "extrinsic evidence" that Congress did not intend to give the FDA jurisdiction over tobacco products, including the agency's history of denying jurisdiction over tobacco, congressional "acquiescence" with the FDA's position, and the fact that existing federal tobacco statutes did not provide a regulatory role for the FDA.³²⁴

Observing that agencies hold the power to adopt regulations which carry into effect the will of Congress rather than the power to make law,³²⁵ the court concluded that the FDA improperly attempted to expand the scope of its jurisdiction to cover tobacco products and reversed the lower court's grant of summary judgment.³²⁶ The Fourth Circuit grounded its conclusion on a "holistic approach to statutory construction"³²⁷ rather than defer to the agency's interpretation of the statutory scheme it had administered for over 75 years.³²⁸ The court held that "a precondition to deference under Chevron is a congressional delegation of administrative authority"³²⁹; a delegation the court found missing.³³⁰ In contrast to the Fourth Circuit, the D.C. Circuit has held that an agency's determination of its own jurisdiction is entitled to Chevron deference.³³¹ In his dissenting opinion, Judge Hall argued that tobacco products "fit comfortably" within the Act's definitions of "drug" and "device," FDA regulations aimed at reducing youth tobacco use cannot possibly be contrary to the overall statutory intent of protecting public health, and the majority's reasoning fell "far short of demonstrating that Congress intended to deny or withdraw jurisdiction over tobacco from the FDA."³³² The FDA appealed, and the Supreme Court affirmed 5 to 4 on March 21, 2000.³³³

The Supreme Court upheld the Fourth Circuit's decision based on the FDCA "as a whole," which would require that tobacco products, if covered by the Act, be banned despite congressional intent to the contrary, and based on subsequent tobacco legislation evincing Congress' intent to preclude the FDA from occupying a regulatory role over tobacco products.³³⁴ Of particular importance, the Court observed that review of an agency's construction of a statute it administers is generally governed by the principles set out in Chevron, but enunciated an "extraordinary case" exception to the Chevron deference rule.³³⁵ The Court stated that, while Chevron deference is "premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to fill in the statutory gaps, . . . in extraordinary cases . . . there may be reason to hesitate before concluding that Congress has intended such an implicit delegation."³³⁶ The Court concluded that tobacco's unique political history coupled with the FDA's expansive construction of the Act presented an extraordinary case in which the Court was obliged to defer to "Congress' consistent judgment to deny the FDA this power" rather than the agency's construction of the statute.³³⁷

Writing for the dissent, Justice Breyer argued that the most important indicia of statutory meaning—language and purpose—establish that the FDA has authority to regulate [30 ELR 11022] tobacco.³³⁸ Justice Breyer asserted that tobacco products fit squarely within the literal language of the Act, its public health purpose, and legislative history.³³⁹ Justice Breyer concluded that the majority opinion was counterintuitive, the "upshot [of which] is that the Court today holds that a regulatory statute aimed at unsafe drugs and devices does not authorize regulation of a drug (nicotine) and a device (a cigarette) that the Court itself finds unsafe."³⁴⁰

The Brown & Williamson decision indicates the limits a federal agency may face in its ability to regulate new areas despite an apparently consistent statutory purpose and broad grant of authority. Moreover, the decision and its "extraordinary case" exception reveal an erosion of the deference agencies have historically received when interpreting their statutory rulemaking authority.

2. American Trucking

The CAA requires EPA to establish and periodically revise national ambient air quality standards (NAAQS) for certain air pollutants (criteria pollutants).³⁴¹ Each criteria pollutant has a primary NAAQS, which represents the maximum concentration of that pollutant requisite "to protect the public health" with "an adequate margin of safety."³⁴² In 1979, EPA set the primary NAAQS for ozone at 0.120 parts per million (ppm) averaged over one-hour intervals.³⁴³ In 1997, EPA promulgated a revised ozone NAAQS of 0.08 ppm averaged over eight-hour periods.³⁴⁴ Many major American industries, specific companies, small businesses, and small business groups petitioned for review, arguing that EPA construed its authority under the CAA so broadly as to render it an unconstitutional delegation of legislative power.³⁴⁵

The D.C. Circuit granted review in American Trucking.³⁴⁶ The court first explained that the nondelegation doctrine requires articulation of an "intelligible principle" to guide agency decisions, then looked to EPA's treatment of ozone.³⁴⁷ EPA considers ozone a likely nonthreshold pollutant, meaning that no level of exposure to it is free of adverse health effects.³⁴⁸ Given the statutory requirement that NAAQS protect health with an adequate margin of safety, the court reasoned that EPA must "explain the degree of imperfection permitted" with "determinate criterion" in setting the NAAQS above zero to survive nondelegation scrutiny.³⁴⁹ The court found that the factors EPA selected for setting nonthreshold NAAQS—severity of effect, certainty of effect, and size of population affected—lack intelligible criteria "for drawing lines" as to "how much [ozone] is too much."³⁵⁰ Because these factors do not "speak to the issue of degree," the court found that it could not assess the justification for selection of a stopping point on the harm scale.³⁵¹

EPA argued that health effects are less severe and less certain below 0.08 ppm, and the Clean Air Scientific Advisory Committee (CASAC) recommended the NAAQS not be set below that level. The court countered that a statement that lower exposure levels are associated with lower health risks is not an intelligible standard, and the CASAC offered no specific reasons for its recommendation.³⁵² Despite its nondelegation concerns, the court elected "not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own" based on an "interpretation without the constitutional weakness."³⁵³ The court remanded the regulations to EPA, instructing it to provide an intelligible principle guiding its interpretation of the relevant statutory sections.³⁵⁴

Judge Tatel dissented, accusing the court of ignoring "the last half-century of Supreme Court nondelegation jurisprudence . . . [sustaining] equally broad [and broader] delegations to other agencies."³⁵⁵ Judge Tatel argued that Congress constrained EPA by requiring it to fashion standards necessary to protect public health, to base those standards on the latest scientific knowledge, and to explain any departure from CASAC recommendations.³⁵⁶

EPA petitioned for a rehearing en banc and, in the order denying the petition and modifying its original opinion, the court clarified why it elected not to declare the CAA unconstitutional or interpret it in a way to avoid the constitutional delegation problem.³⁵⁷ The court explained that Chevron requires courts to defer to agencies' reasonable interpretations of ambiguous statutory terms.³⁵⁸ Reiterating that it would afford EPA an opportunity to interpret the statute in a constitutional manner, the court stated that "just as we must defer to an agency's reasonable interpretation of an ambiguous statutory term, we must defer to an agency's reasonable interpretation of a statute containing only an ambiguous principle by which to guide its exercise of delegated authority."³⁵⁹

As Judge Tatel and a number of subsequent commentators point out, the decision in American Trucking represents [30 ELR 11023] a departure from decades of cases in which the Supreme Court and other federal courts have upheld broad general congressional delegations of authority to federal agencies, focusing on the underlying legislation rather than the Agency's interpretation of it.³⁶⁰ Hence, American Trucking could have ominous implications for rulemaking under the broad living marine resource statute delegations of authority to promulgate "necessary and appropriate" regulations.³⁶¹ These implications will soon be addressed by the Supreme Court: it granted EPA's petition for a writ of certiorari in May 2000, and industries cross-petitioned for writ of certiorari.³⁶²

III. Extent of the Reach: Current Proposals

This section examines three current proposals that call on federal agencies to engage in rulemaking in uncharted waters. The fact that the recommendations involve potentially unprecedented exercises of federal regulatory authority should not, in and of itself, be a limiting factor. According to the Supreme Court, the fact that a regulatory power asserted by a federal agency is novel or unprecedented does not mean that power does not exist.³⁶³ This power is limited, however, to "the power to adopt regulations to carry into effect the will of Congress as expressed by the statute . . . not the power to make law."³⁶⁴

The Supreme Court has admonished that, when a statute grants broad rulemaking authority, "a consistent administrative construction of the statute must be followed by the courts unless there are compelling reasons that it is wrong"³⁶⁵ and "where the empowering provision of a statute states simply that the agency may 'make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,' . . . a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.'"³⁶⁶ The MMPA, the ESA, and the MSFCMA empower federal agencies with those very words.³⁶⁷

Beyond questions of legal doctrine relative to agency authority and judicial review are more pragmatic issues of what a court is likely to do in a given context, particularly in a case of first impression, i.e., questions of legal realism.³⁶⁸ [30 ELR 11024] As described above, there may be a shifting of the legal sands in the degree to which courts will show federal agencies deference in administering statutes they are entrusted to implement.³⁶⁹ To the degree that the limits of federal regulatory authority are truly a moving target,³⁷⁰ accounting for that movement is a further aspect of agency regulation to be reckoned with.

For the sake of continuity and comparison, a single motif that presents issues traversing the foregoing spectrum of authority and limitations³⁷¹ is considered: whale protection. Three whale protection proposals by government and nongovernment organizations, including industry members, are examined: the establishment of a permit system for whale watching, the modification of fishing gear, and the creation of a vessel traffic routing scheme. Regulations implementing these proposals would require reliance on the general rulemaking authority of the MMPA, the ESA or—potentially—the MSFCMA, or a combination of all three.³⁷² The regulations could have significant implications for the shipping, fishing, and whale watch industries and others.

A. Background

Eight species of large whales are listed as endangered under the ESA.³⁷³ Of those, the Northern right whale, which numbers less than 300 in the Atlantic and less than 200 in the Pacific, is considered the most endangered and is the focal point of numerous federal regulatory measures.³⁷⁴ The primary threats to right whales and other large whales are ship strikes and fishing gear entanglement.³⁷⁵ An average of seven right whales are killed every three years as a result of human activities.³⁷⁶ Based on the number that are killed each year, the Northern right whale population is considered to be static or declining.³⁷⁷

Efforts to protect the right whale include time and area closures for certain fisheries, critical habitat designation, vessel approach limits, a mandatory ship reporting system, stranding and disentanglement responses, aircraft surveys, and notices to mariners.³⁷⁸ As an illustration of the level of concern over the plight of the right whale, Congress increased its appropriations for right whale recovery actions from $ 1.4 million in fiscal 1999 to $ 4.1 million in fiscal year 2000.³⁷⁹

B. Proposals

1. Whale Watch Permits

The ESA requires the development and implementation of plans for the conservation and survival of threatened and endangered species.³⁸⁰ The Northern Right Whale Recovery Plan, developed by NMFS in 1991, contains a list of recommended actions designed to protect and recover the right whale.³⁸¹ The list includes recommendations to adopt whale watch regulations and implement controls on activities that may lead to whale interactions.³⁸² NMFS established the [30 ELR 11025] Northeast Implementation Team to assist in the implementation of the Northern Right Whale and Northern Humpback Whale Recovery Plans.³⁸³ The Team established the Whale Watch Advisory Group (WWAG), composed of members of the whale watch industry, conservation groups, and state and federal agencies, to investigate appropriate means of addressing the increasing threat to endangered whales posed by whale watching.³⁸⁴

Whale watching is a rapidly growing recreational activity, particularly in the Northeast and Alaska where whales congregate to feed.³⁸⁵ Two whales were struck by whale watch tour boats in the Northeast in 1998 and three reports of harassment by whale watch vessels in 1999 were under investigation as of January 2000.³⁸⁶ In response to a WWAG recommendation, NMFS published an advance notice of proposed rulemaking on January 4, 2000, seeking public comment on proposed whale watch regulations, including establishment of an "operator permit or certification program."³⁸⁷ The notice indicates that operators of vessels engaged in whale watching would be required to obtain a permit or certification after demonstrating knowledge of whale behavior and proper vessel operation.³⁸⁸ It also provides that sanctions could include loss of a permit for nonconformance.³⁸⁹

Neither the MMPA nor the ESA specifically address whale watching or specifically authorize NMFS to establish a permit system for whale watching.³⁹⁰ Accordingly, NMFS would be relying on its general authority under the Acts to promulgate "necessary and appropriate" regulations to carry out the purposes of the Acts.³⁹¹ NMFS has not previously relied on this authority to establish a permit system not specifically provided for by statute.

NMFS would not be the first federal agency to rely on its general authority to establish such a permit system. In Glacier Bay National Park, the NPS has relied on its general authority to promulgate extensive regulations covering activities within the park, including a permit requirement to operate a vessel in park waters, whale approach limits, and speed restrictions.³⁹² Additionally, the Forest Service has promulgated regulations requiring permits for towboats operating in the Boundary Waters Canoe Wilderness Area along the border between Minnesota and Canada.³⁹³ The Eighth Circuit upheld the regulations in an unpublished opinion despite challenges that the statute relied on does not specifically provide for a permit scheme and that the agency exceeded the authority delegated to it by Congress.³⁹⁴

The question of NMFS' authority to establish a whale watch permit system is, at the outset, one of statutory construction.³⁹⁵ Under the Chevron two-part analysis, the first inquiry is whether Congress has directly spoken to the precise issue of establishing a whale watch permit scheme under the MMPA or the ESA.³⁹⁶ Both statutes are silent on the issue.³⁹⁷ Accordingly, Chevron requires deference to NMFS' construction of the statute if its interpretation is reasonable.³⁹⁸

In determining whether regulations promulgated under the general authority of the ESA and the MMPA reflect a reasonable interpretation of those Acts, reviewing courts have looked to whether the regulations align with the purposes and overall framework of the Acts.³⁹⁹ The proposed whale watch permit scheme is for the stated purpose of reducing "what is believed to be an increasing threat to whales, as evidenced by the whale watch vessel strikes in 1998 and recent reports of harassment."⁴⁰⁰ Reducing an increasing threat to whales is consistent with the MMPA's "overriding purpose" of protecting marine mammals⁴⁰¹ and the "plain intent" of the ESA to "halt and reverse the trend toward species extinction, whatever the cost."⁴⁰² The use of a permit system to reduce these threats is consistent with the scheme employed by both Acts of using permits to regulate the effects of potentially harmful activities, including scientific [30 ELR 11026] research,⁴⁰³ enhancement activities,⁴⁰⁴ and photography.⁴⁰⁵ Accordingly, the proposed whale watch permit scheme appears to be consistent with, and a reasonable construction of, both statutes.

One could argue that the MMPA and the ESA permit schemes authorize takes occurring in the course of the activities rather than the activities themselves and, therefore, a regulation requiring permits to engage in whale watching is inconsistent with the statutory framework.⁴⁰⁶ Furthermore, the ESA only authorizes permits for: (a) takes occurring in the course of scientific research and enhancement activities or (b) takings incidental to otherwise lawful activities upon submission of a conservation plan and public comment.⁴⁰⁷ Thus, the argument goes, a regulatory regime requiring permits to engage in whale watching is inconsistent with the framework of both Acts.⁴⁰⁸

There are several possible responses to the preceding argument. First, neither Act specifically prohibits this type of permit scheme.⁴⁰⁹ Second, establishment of the permit scheme is consistent with the Secretary's broad rulemaking authority to administer the statutes consistent with their purposes in light of everyday realities.⁴¹⁰ Third, while the permits would protect holders from liability, they would be designed to prevent rather than authorize takes.⁴¹¹ Fourth, it seems both counterintuitive and inconsistent with the purposes of the ESA to conclude that a permit scheme designed to curb an increasing threat to whales would fail under a mechanistic reading of either Act. Finally, if a general whale watch permit requirement does impermissibly conflict with the statutory scheme, a regime could be established solely under the MMPA that sets a minimum approach distance for all whales with exceptions allowing whale watch permit holders to approach nonendangered whales. If the approach distance is set based on findings that takes by harassment are likely within the established distance, the regime would be consistent with the statutory scheme of permitting takes in the course of an activity rather than the activity itself⁴¹² and would avoid conflicts with ESA provisions.⁴¹³

A further argument, based on Brown & Williamson, is that NMFS lacks jurisdiction to regulate vessel operations under either statute.⁴¹⁴ This argument would fail for several reasons. First, the statutes are not specific to types of activities that may be regulated; rather, they provide for species' protection from all activities with a few narrow exceptions. Second, NMFS jurisdiction over takes resulting from vessel operations, under both Acts, is well established.⁴¹⁵

Finally, it could be argued in accordance with American Trucking that by requiring whale watch permits, NMFS would be construing its authority so broadly as to render it an unconstitutional delegation of legislative power.⁴¹⁶ As in American Trucking, NMFS would be relying on broad statutory authority.⁴¹⁷ This proposal can be distinguished from the line-drawing exercise at issue in American Trucking,⁴¹⁸ however, in that the whale watch regulations would implement a particular method of protecting whales rather than select, for instance, an acceptable level of whale mortality.⁴¹⁹ The MMPA and the ESA, furthermore, provide a clearly intelligible principle to guide agency rulemaking: protection and recovery.⁴²⁰ Moreover, the vast majority of court decisions have upheld broad general delegations of authority such as that provided by the MMPA and the ESA.⁴²¹ Finally, the Supreme Court has confirmed that,

where the empowering provision of a statute states simply that the agency may "make . . . such rules and regulations as may be necessary to carry out the provisions of this Act," . . . a regulation promulgated thereunder will be sustained so long as it is "reasonably related to the purposes of the enabling legislation."⁴²²

[30 ELR 11027]

2. Fishing Gear Modification

The MMPA requires that NMFS prepare a "take reduction plan" for any marine mammal stock affected by commercial fisheries and which is unable to reach or maintain its "optimum sustainable population" because of human-caused mortality.⁴²³ These plans are drafted by take reduction teams established by NMFS.⁴²⁴ The MMPA directs that the take reduction teams be comprised of members who have expertise in the conservation or biology of marine species or relevant fishing practices.⁴²⁵ To ensure coordination between FMPs developed under the MSFCMA and take reduction plans developed under the MMPA, the MMPA requires that take reduction teams include representatives of appropriate regional fishery management councils.⁴²⁶ The Secretary of Commerce has the discretion to modify take reduction plans, but must publish regulations implementing any final take reduction plan.⁴²⁷ A final plan may include a number of protection measures, including mortality limits and gear requirements.⁴²⁸ The MMPA specifically provides that in implementing a take reduction plan, NMFS may promulgate regulations requiring the use of alternative fishing gear incorporating new technology.⁴²⁹

Three right whales died from fishing gear entanglement between 1975 and 1991, and over 60% of right whales show scars from fishing gear entanglements.⁴³⁰ In 1996, NMFS established the Atlantic Large Whale Take Reduction Team to reduce the number of right, humpback, fin, and minke whale fatalities caused by fishing gear.⁴³¹ The team is currently considering two fairly radical proposals: eliminating vertical fishing lines used for lobster buoys and gill nets, and using lines that will break apart at 200 pounds pressure or dissolve if wrapped around a whale.⁴³²

These proposals call for rulemaking in uncharted waters, but only in the sense that the elimination of vertical line and use of dissolving gear has not been required before. Other gear modifications, such as TEDs and FEDs, have been required by NMFS regulations despite forcing radical gear changes at the time.⁴³³ It is likely, nonetheless, that regulations implementing these proposals would be challenged for imposing unreasonable expense on fishermen. When shrimpers challenged MSFCMA regulations requiring the use of FEDs on that basis in Florida Wildlife Federation, the court upheld the regulations pursuant to the traditional arbitrary and capricious standard of the APA.⁴³⁴

The MMPA provides specific authority to promulgate regulations that require the use of alternative gear incorporating new technology.⁴³⁵ Congress has, thus, spoken to the precise issue of whether NMFS is authorized to promulgate the proposed gear regulations. Accordingly, analyzing this proposal under Chevron requires looking to whether the regulations would give effect to the intent of Congress.⁴³⁶ The proposal is intended to reduce right whale mortality caused by fishing gear. If the gear requirements would be a reasonable means⁴³⁷ of achieving the MMPA's "overriding purpose of protecting marine mammals," they should be upheld under a Chevron analysis.⁴³⁸ Based on the specific MMPA language authorizing regulations that require the use of alternative gear incorporating new technology, these proposals do not appear to raise Brown & Williamson-type jurisdiction issues or American Trucking-type non-delegation concerns.⁴³⁹

3. Vessel Traffic Routing

The Northern Right Whale Recovery Plan recommends, in addition to the whale watch regulations discussed above and other protection measures, implementation of "appropriate controls on ship operations" to reduce collisions with right whales.⁴⁴⁰ The plan suggests modifying established shipping lanes as one means of controlling ship operations.⁴⁴¹ This is deemed, for the purpose of the following discussion, a recommendation to require that ships transiting right whale critical habitat follow vessel traffic routing schemes established by regulation.⁴⁴²

This proposal raises issues well beyond statutory construction of living marine resource statutes and the regulatory authority they provide. Based on the implications for ship passage, law of the sea principles are a significant consideration. Under UNCLOS,⁴⁴³ a nation has complete sovereignty over its ports and internal waters.⁴⁴⁴ This sovereignty decreases with distance from shore, however. In its 12-mile territorial sea, a nation can establish ship routing measures provided the measures do not hamper the innocent passage of foreign vessels.⁴⁴⁵ To control ships transiting in the EEZ, a nation proposing ship routing measures generally must seek approval from the IMO for the measure to receive [30 ELR 11028] international standing and acceptance.⁴⁴⁶ The United States could, without pursuing IMO approval, seek to establish and require compliance with traffic routing measures in its EEZ as a condition of port entry.⁴⁴⁷ This would require careful consideration, however, of the implications of such a precedent for U.S. shipping interests in foreign waters.

Adding to international law constraints are questions concerning the appropriate mechanism to implement ship routing measures. NMFS faced similar questions in its recent establishment of an MSR to protect the right whale. The MSR, which is designed to help mariners avoid hitting right whales by providing whale location information, requires commercial ships over 300 gross tons entering right whale critical habitat to report their name, position, speed, course, route, and destination to a shore-based station.⁴⁴⁸ NMFS and the Coast Guard jointly developed the MSR scheme and submitted it to the IMO for approval.⁴⁴⁹ Once approval was received, the Coast Guard promulgated regulations implementing it under the authority of the Ports and Waterways Safety Act (PWSA).⁴⁵⁰ The PWSA, which includes reducing the possibility of damage to the marine environment as one of its purposes, authorizes the Coast Guard to issue regulations establishing reporting and operating requirements, including vessel traffic routing schemes.⁴⁵¹ Thus, a similar approach may be available for the establishment of vessel traffic routing measures in right whale critical habitat.⁴⁵²

Finally, accepting, arguendo, that the establishment of ship routing measures in right whale critical habitat by regulation could pass international muster and an appropriate implementing mechanism can be found, the regulations will need to be based on a proper construction of the statutory authority relied upon.⁴⁵³ In the PWSA, Congress has spoken to the precise issue of establishing vessel traffic routing schemes to protect the marine environment.⁴⁵⁴ Thus, under Chevron, the proposed vessel traffic routing scheme must give effect to Congress' intent.⁴⁵⁵ "Marine environment" is defined by the PWSA as "the navigable waters of the United States and . . . resources therein . . . [including] fishery resources of any area over which the United States asserts exclusive fishery management authority."⁴⁵⁶ The term "marine environment" clearly includes living marine resources. Accordingly, a vessel traffic routing scheme reasonably designed⁴⁵⁷ to protect the right whale should be deemed a proper exercise of PWSA authority in accordance with Chevron.

IV. Conclusion

The waters of living marine resource regulation remain largely uncharted.⁴⁵⁸ There are a number of proposals in addition to those mentioned above that may test the regulatory reach of living marine resource statutes, including recommendations to control vessel noise⁴⁵⁹ and restrict vessel speed in "high risk areas."⁴⁶⁰ Within these uncharted waters, the exact reach of regulatory authority is often unclear until tested, and the result may depend on the currents of judicial progress.⁴⁶¹

Assessing the regulatory reach of living marine resource statutes starts with statutory construction,⁴⁶² but also requires accounting for the unique aspects of this sub-realm of wildlife law. While terrestrial wildlife management attempts to deal with species impacts from a broad expanse of activities, marine species management tends to be concerned with a relatively small number of discreet activities. [30 ELR 11029] The biggest impacts to living marine species tend to come from a few highly regulated groups: vessel operators, fishermen, and seabed developers.⁴⁶³ These groups are particularly sensitive to incremental regulatory measures, while protectionists are inclined to find regulatory measures wholly inadequate. Thus, federal agencies charged with implementing living marine resource statutes find that they are apt to be sued from all sides regardless of the course of regulatory action they pursue. This intense process of balancing sharply competing interests is complicated by the overlap of other highly specialized areas of the law, such as maritime, coastal, and international law.

The unique challenges posed by living marine resource management are counterbalanced, however, by broad statutory authority to promulgate implementing regulations under the MMPA, the MSFCMA, the ESA and other acts. A living marine resource regulation promulgated under—but not specifically authorized by—an applicable statute should receive Chevron deference if challenged, provided that it is based on a reasonable interpretation of statutory authority.⁴⁶⁴ American Trucking and Brown & Williamson notwithstanding, a regulation promulgated under the authority of a living marine resource statute should be sustained as long as it is reasonably related to the act it implements.⁴⁶⁵

The constraints, considerations, and possibilities involved in living marine resource regulation are as vast as the sea and diversity of life in it. Delving into these uncharted waters on behalf of species needing protection is a formidable but necessary mission of a few federal agencies. These agencies must bear in mind that the expense and inconvenience of regulations on industry "cannot compare to the 'incalculable' value of genetic heritage embodied in any protected living species."⁴⁶⁶

Appendix A

Selected Living Marine Resource Statutes⁴⁶⁷

* Anadromous Fish Conservation Act (16 U.S.C. § 757(a)-(g)

* Antarctic Conservation Act of 1978 (16 U.S.C. §§ 2401-2412)

* Antarctic Marine Living Resources Convention Act of 1984 (16 U.S.C. §§ 2431-2444)

* Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. § 5101)

* Atlantic Tunas Convention Act of 1975 (16 U.S.C. §§ 971-971i)

* Atlantic Salmon Convention Act of 1982 (16 U.S.C. §§ 3601-3608)

* Atlantic Striped Bass Conservation Act (16 U.S.C. § 1851)

* Central, Western, and South Pacific Fisheries Development Act (16 U.S.C. § 758e-758e-5)

* Control of "Crown of Thorns" Seastar (16 U.S.C. §§ 1211-1213)

* Control or Elimination of Jellyfish or Sea Nettles (16 U.S.C. §§ 1201-1205)

* Driftnet Impact Monitoring, Assessment, and Control Act (16 U.S.C. § 1826)

* Eastern Pacific Tuna Licensing Act of 1984 (16 U.S.C. § 972-972h)

* Endangered Species Act of 1973 (ESA) (16 U.S.C. §§ 1531-1543, ELR STAT. ESA §§ 2-18)

* Fur Seal Act Amendments of 1983 (16 U.S.C. §§ 1151-1175)

* Fish and Wildlife Act of 1956 and associated provisions (16 U.S.C. §§ 742a-742d, 742e-742j 742k, 744-748, 750-753, 753a-753b, 754, 758-758d, 760a-760g)

* Fish and Wildlife Coordination Act (16 U.S.C. §§ 661-666c)

* Indian Treaty Rights to Hunt and Fish

* Lacey Act Amendments of 1981 (16 U.S.C. §§ 3371-3378)

* Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. §§ 1801-1883)

* Marine Mammal Protection Act of 1972 (16 U.S.C. §§ 1361-1407, ELR STAT. MMPA §§ 2-409)

* Migratory Bird Treaty Act (16 U.S.C. §§ 703-715s)

* The National Aquaculture Act of 1980 (16 U.S.C. §§ 2801-2810)

* The National Fishing Enhancement Act of 1984 (16 U.S.C. § 1220, 33 U.S.C. §§ 2101 et seq.)

* National Marine Sanctuaries Act (16 U.S.C. §§ 1431 et seq.)

* Northern Pacific Halibut Act of 1982 (16 U.S.C. §§ 773-773k)

* Pacific Salmon Treaty Act of 1985 (16 U.S.C. §§ 3631-3644)

* South Pacific Tuna Act of 1988 (16 U.S.C. §§ 973-973r)

* Sponge Act (16 U.S.C. §§ 781-785)

* Tuna Conventions Act of 1950 (16 U.S.C. §§ 951-991)

* Whaling Convention Act of 1949 (16 U.S.C. §§ 916-9161)

Appendix B

Selected International Treaties and Conventions With Implementing Legislation⁴⁶⁸

[30 ELR 11030]

* International Convention for the Regulation of Whaling, 1948; Whaling Convention Act (16 U.S.C. § 916-9161)

* Convention Between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission, 1949; Tuna Conventions Act of 1950 (64 Stat. 777), as amended (16 U.S.C. § 951-961)

* Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 1953; Northern Pacific Halibut Act of 1982 (as amended: 50 Stat. 325; 67 Stat. 494; 79 Stat. 902; 97 Stat. 78)

* Convention on Great Lakes Fisheries Between the United States and Canada, 1954; Great Lakes Fisheries Act of 1956 (16 U.S.C. § 932)

* International Convention for the Conservation of Atlantic Tunas, 1966; Atlantic Tunas Convention Act of 1975 (16 U.S.C. § 971)

* Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, 1971

* Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, 1973

* Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1979; Northwest Atlantic Fisheries Convention Act of 1995 (Title II of Pub. L. No. 104-43)

* Convention for the Conservation of Salmon in the North Atlantic Ocean, 1982; Atlantic Salmon Convention Act of 1982 (16 U.S.C. § 3601)

* Agreement Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon, 1985; Pacific Salmon Treaty Act of 1985 (16 U.S.C. § 3631)

* Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America, 1988; South Pacific Tuna Act of 1988 (16 U.S.C § 973-973r)

* Convention on Biological Diversity, Rio De Janeiro, 1992

* Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, 1992; North Pacific Anadromous Stocks Act of 1992 (Title VIII of Pub. L. No. 102-567)

* Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Donut Hole Agreement), 1994

* Interim Agreement on Yukon River Salmon, 1995; Yukon River Salmon Act of 1995 (16 U.S.C. § 1821)

1. Lord Byron, Childe Harold's Pilgrimage, canto IV, st. 179 (1812) (quoted by Vice President Al Gore at National Oceans Conference, Plenary Session, Monterey, California, June 11, 1998).

2. See National Oceanic & Atmospheric Admin., Ocean 98, Ocean Facts and Statistics (visited Aug. 28, 2000) http://www.ocean98.org/fact.htm.

3. See National Oceanic & Atmospheric Admin., Ocean 98, Planet Ocean: Some Facts and Figures (visited Aug. 28, 2000) http://www.unesco.org/opi/eng/98iyo/pl-ocean.htm. Biodiversity is "the whole variety of life on earth . . . the total web of life on the planet, inclusive of plant, animal, and micro-organisms." Christopher Joyner, Biodiversity in the Marine Environment: Resource Implications for the Law of the Sea, 28 VAND. J. TRANSNAT'L L. 635, 637-38 (1995).

4. This figure represents percent by weight. See National Oceanic & Atmospheric Admin., Year of the Ocean Discussion Paper (visited Aug. 28, 2000) http://www.yoto98.noaa.gov/yoto/meeting/mar_trans_316.html. 41% of the total value of U.S. foreign trade is carried on the ocean and passed through American ports. See National Oceanic & Atmospheric Admin., Foreword (visited Aug. 28, 2000) http://www.yoto98.noaa.gov/yoto/meeting/foreword.html.

5. Oceans, in THE NEW ENCYCLOPEDIA BRITANNICA 193 (15th ed. 1994).

6. The State of World Fisheries and Aquaculture, U.N. Food and Agriculture Organization. ISBN 92-5-104187-3, ISSN 1020-5489 (1998). World fish exports represent approximately 1% of total global merchandise trade. Id.

7. Remarks by Vice President Gore to National Oceans Conference, Monterey, California (June 12, 1998) (available at http://www.whitehouse.gov/WH/New/html/19980611-8779.html).

8. See Ocean 98, Planet Ocean: Some Facts and Figures, supra note 3.

9. See generally Remarks by the President to the National Oceans Conference, Monterey, California (June 12, 1998) available at http://www2.whitehouse.gov/WH/New/html/19980615-12921.html (stating that two-thirds of the world's fisheries are over-exploited, 10% of the world's reefs have been destroyed, and the ocean is the warmest that it has been since temperature measurements first started in 1894).

10. See, e.g., 16 U.S.C. § 1451(c), ELR STAT. CZMA § 302(c):

The increasing and competing demands upon the lands and waters of our coastal zone occasioned by population growth and economic development, including requirements for industry, commerce, residential development, recreation, extraction of mineral resources and fossil fuels, transportation and navigation, waste disposal, and harvesting of fish, shellfish, and other living marine resources, have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion.

Id. See also Marine Protection, Research, and Sanctuaries Act (MPRSA), 16 U.S.C. § 1401; Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361, ELR STAT. MMPA § 2; and the reorganization plan establishing the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce, wherein the President said:

The oceans and atmosphere are interacting parts of the total environmental system upon which we depend not only for the quality of our lives, but for life itself. We face . . . a compelling need for exploration and development leading to the intelligent use of our marine resources. The global oceans, which constitute nearly three-fourths of the surface of our planet, are today the least-understood, the least-developed, and the least-protected part of our earth.

Message of the President accompanying transmittal to Congress of Reorganization Plan No. 4 of 1970 (July 9, 1970), 5 U.S.C. App. 1.

11. 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409.

12. Id. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

13. Id. §§ 1801-1882.

14. Id. §§ 1431-1447(f).

15. Id. §§ 1451-1465, ELR STAT. CZMA §§ 302-319.

16. See, e.g., id. § 1382(a), ELR STAT. MMPA § 112 (the MMPA's authority to prescribe "such regulations as are necessary and appropriate") and id. § 1374(c), ELR STAT. MMPA § 104 (the MMPA's authority to prescribe regulations implementing scientific research permit provisions).

17. See, e.g., Florida Wildlife Federation v. Daley, No. 4:98CV101-RH (N.D. Fla. Nov. 3, 1999) (shrimper plaintiffs challenged regulations that require gear modifications while conservation plaintiffs challenged nonapplication of regulations to certain parts of the Gulf of Mexico).

18. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), modified on reh'g, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999), petition for cert. granted (May 22 and 30, 2000).

19. 153 F.3d 155 (4th Cir. 1998), aff'd, No. 98-1152, 2000 WL 289576 (U.S. Mar. 21, 2000) See also James T. O' Reilly, Chevron Goes Up in Smoke: Did the Supreme Court Reward Gridlock Tactics in the Cigarette Decision? 30 ELR 10574 (July 2000).

20. See infra notes 309, 310, 332, 333, 360, 369, 370 and accompanying text.

21. See infra section III.

22. U.S. CONST. art. II, § 1, cl. 8.

23. See 2 AM. JUR. 2D Administrative Law § 52 (1994).

24. Id. (citing Bernard Meltzer, Administrative Law and Procedure: Defining the Scope of Agency Power, 62 CHI.-KENT L. REV. 351 (1986)).

25. Id. at § 59.

26. 16 U.S.C. § 1374(c), ELR STAT. MMPA § 104.

27. Id. § 1382(a), ELR STAT. MMPA § 112(a).

28. See, e.g., infra section II.E.2.

29. See FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965).

30. See United States v. Dortch, 5 F.3d 1057 (7th Cir. 1993), cert. denied, 510 U.S. 1121 (1994).

31. 467 U.S. 837, 14 ELR 20507 (1984).

32. Id. at 842-43, 14 ELR at 20508-09.

33. Id.

34. See 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409; id. §§ 1531-1544, ELR STAT. ESA §§ 2-18; id. §§ 1801-1882; id. §§ 1431-1447(f); id. §§ 1451-1465, ELR STAT. CZMA §§ 302-319; and infra Appendix A. For a comprehensive review of these and other wildlife laws, three leading texts in the field are MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW (3d ed. 1997); RUTH S. MUSGRAVE ET AL., FEDERAL WILDLIFE LAWS HANDBOOK (1998); and RICHARD LITTELL, ENDANGERED AND OTHER PROTECTED SPECIES (BNA 1992).

35. 16 U.S.C. § 1371, ELR STAT. MMPA § 101.

36. See 50 C.F.R. §§ 18.3 and 216.3; see also infra notes 89 and 90.

37. 16 U.S.C. § 1374, ELR STAT. MMPA § 104.

38. Id. § 1387, ELR STAT. MMPA § 118.

39. Id. § 1371(a), ELR STAT. MMPA § 101(a).

40. Id. §§ 1801-1882.

41. Id. § 1852.

42. Id. §§ 1852-1861.

43. Id. § 1851; 50 C.F.R., pt. 602.

44. 16 U.S.C. § 1854(a) & (b).

45. Id. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

46. See generally id. §§ 1533, 1536, 1538, 1540, ELR STAT. ESA §§ 4, 7, 9, 11.

47. See 50 C.F.R. §§ 17.2(b), 17.11, 223.102, 224.101; see also infra notes 91-92.

48. 16 U.S.C. § 1533(f), ELR STAT. ESA § 4(f).

49. See infra notes 380-89.

50. See infra note 367.

51. 16 U.S.C. §§ 3371-3378.

52. Id. § 3376.

53. 33 U.S.C. §§ 1431-1447(f).

54. Id. § 1432.

55. Id. §§ 1431-1447(f).

56. Id. § 1434.

57. Id. § 1441.

58. 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319.

59. Id. § 1456, ELR STAT. CZMA § 307.

60. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

61. For an extensive list of living marine resource statutes and treaties, see Oceans & Coastal Resources: A Briefing Book, Cong. Research Rep., 97-588 ENR (May 30, 1997).

62. 16 U.S.C. §§ 1151 et seq. (restricting takes of fur seals in the North Pacific Ocean).

63. 16 U.S.C. § 757(a)-(g) (authorizing agreements between the FWS and states to conserve anadromous fish).

64. 16 U.S.C. §§ 2431 et seq. (prohibiting takes of living organisms south of the Antarctic Convergence).

65. 16 U.S.C. §§ 973-973r (implementing Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America).

66. 1945 Truman Proclamation on the Continental Shelf, 10 Fed. Reg. 12303 (Apr. 13, 1945).

67. See generally R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA (2d ed. 1988). See also infra Appendix B.

68. See CHURCHILL & LOWE, supra note 67.

69. United Nations Convention on the Law of the Sea, art. 56, opened for signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (entered into force Nov. 16, 1994) [hereinafter UNCLOS].

70. Id. arts. 61-63.

71. Id. arts. 65, 120.

72. Id. art. 64 (protection of tunas and swordfish in and beyond EEZs through cooperative management).

73. Id. arts. 66-67 (responsibility of home nation to protect anadromous species (enter freshwater to spawn, e.g., salmon) and catadromous species (enter ocean to spawn, e.g., eels) and of foreign nations to cooperate).

74. Id. art. 77 (extending to continental shelf coastal nation jurisdiction over sedentary species (e.g., oysters)).

75. Id. arts. 192-237.

76. Apr. 29, 1958, 17 U.S.T. 138.

77. Id.

78. Dec. 2, 1946, 62 Stat. 1716, T.I.A.S. No. 1849, 161 U.N.T.S. 72. (entered into force Nov. 10, 1948).

79. 16 U.S.C. § 916.

80. 62 Stat. 1716 (1948).

81. Id.

82. MARINE MAMMAL COMMISSION, ANNUAL REPORT TO CONGRESS 39-40 (1987).

83. Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 (entered into force July 1, 1975).

84. 37 Stat. 1542 (July 7, 1911).

85. Pub. L. No. 102-523, 106 Stat. 3425 (1992) (codified as amended in 16 U.S.C. §§ 1411-1418, ELR STAT. MMPA §§ 301-308.

86. May 20, 1980, 33 U.S.T. 3476, T.I.A.S. No. 10240 (entered into force Apr. 7, 1982).

87. See Reorganization Plan No. 4 of 1970, 5 U.S.C. App. 1 (1994), and NOAA Historical Background (visited Aug. 29, 2000) http://www.noaa.gov/history.html.

88. Id. See also NOAA, NOAA's Strategic Goals (visited Aug. 29, 2000) http://www.strategic.noaa.gov/.

89. See 16 U.S.C. §§ 1801-1882.

90. See id. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409. The NMFS' MMPA authority covers all cetaceans (whales, dolphins, and porpoises) and all pinnipeds (seals and sea lions) except walrus. Id. § 1362(12)(A)(I), ELR STAT. MMPA § 3(12)(A)(I); 50 C.F.R. § 216.3. NMFS also implements the MMPA's commercial fishing interaction program. 16 U.S.C. § 1362(12)(B), ELR STAT. MMPA § 3(12)(B).

91. See 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18. NMFS has jurisdiction over most marine species listed under the ESA. See 50 C.F.R. §§ 17.2(b), 17.11, 223, 102, 224.101.

92. The FWS administers the MMPA for species not falling under the NMFS' authority (manatees, dugongs, sea otters, walruses, and polar bears). 16 U.S.C. § 1362(12)(A)(ii), ELR STAT. MMPA § 3(12)(A)(ii); 50 C.F.R. § 18.3. The species which the FWS has jurisdiction over for ESA purposes are set forth in 50 C.F.R. § 17.11.

93. See 16 U.S.C. §§ 1431-1447(f). See also National Ocean Service, Programs (visited Aug. 28, 2000) http://www.nos.noaa.gov/Programs/OCRM.html.

94. See 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319. See also National Ocean Service, Programs (visited Aug. 28, 2000) http://www.nos.noaa.gov/Programs/OCRM.html.

95. 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409.

96. See id. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

97. See supra notes 90-92 and accompanying text.

98. See National Park Service, Glacier Bay National Park and Preserve (visited Aug. 29, 2000) http://www.nps.gov/glba/.

99. See National Park Service, Glacier Bay National Park and Preserve: A Maritime Wilderness (visited Aug. 29, 2000) http://www.nps.gov/glba//learn/about/index.htm.

100. 36 C.F.R. § 13.65.

101. See U.S. Coast Guard, Living Marine Resources (visited Aug. 29, 2000) http://www.uscg.mil/hq/g-o/g-opl/mle/LMR.htm.

102. 33 C.F.R. §§ 169.1 et seq.

103. See infra notes 448-50; Northern Right Whales; Mandatory Ship Reporting Systems (visited Aug. 29, 2000) http://www.nmfs.noaa.gov/prot_res/cetacean/mst/.

104. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Mistretta v. United States, 488 U.S. 361 (1989).

105. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 865-66, 14 ELR 20507, 20514 (1984) (discussing agencies' administration of statutes "in light of everyday realities"); see also infra note 155 and accompanying text.

106. U.S. CONST. art. I, § 8.

107. Id. art. II, § 2, cl. 2; art. IV, § 3, cl. 2; art. I, § 8, cl. 3. The power to tax and spend and the power of eminent domain have also been employed to regulate wildlife-related activities. See MUSGRAVE ET AL., supra note 34.

108. 223 U.S. 166 (1912).

109. Id. at 172.

110. Id. at 174, 175-78.

111. 252 U.S. 416 (1920).

112. Id.

113. Id. at 434-35.

114. 471 F. Supp. 985, 9 ELR 20426 (D. Haw. 1979), aff'd, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981).

115. Id. at 992, 995, 9 ELR at 20429-30.

116. See GEORGE C. COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 1 (3d ed. 1993); 16 U.S.C. § 1811(a) (breadth of fishery conservation zone).

117. See Act of May 7, 1894, 28 Stat. 73 (prohibiting hunting in Yellowstone National Park); Act of June 28, 1906, 34 Stat. 536 (prohibiting hunting of birds on U.S. lands set apart as breeding grounds).

118. 278 U.S. 96 (1928).

119. Id. at 100. See also Chalk v. United States, 114 F.2d 207 (4th Cir. 1940) (extending the Hunt decision to acquired national forest lands).

120. 410 F.2d 1197 (10th Cir.), cert. denied sub nom. New Mexico State Game Comm'n v. Hickel. 396 U.S. 961 (1969).

121. Id. at 1201.

122. 396 U.S. at 961.

123. 426 U.S. 529, 6 ELR 20545 (1976).

124. 16 U.S.C. §§ 1331 et seq. (the Act requires the Secretaries of Agriculture and the Interior to protect and manage wild horses and burros on federal lands "as components of the public lands").

125. Kleppe, 426 U.S. at 539, 541, 6 ELR at 20547.

126. 552 F.2d 817, 7 ELR 20366 (8th Cir. 1977), cert. denied, 431 U.S. 949 (1977).

127. 16 U.S.C. § 3.

128. 949 F.2d 202 (6th Cir. 1991) (citing Light v. United States, 220 U.S. 253 (1911)).

129. Camfield v. United States, 167 U.S. 518 (1897).

130. Minnesota ex rel. Alexander v. Block, 660 F.2d 1240, 11 ELR 21033 (8th Cir. 1981).

131. 471 F. Supp. at 995 n.40, 9 ELR at 20430 n.40.

132. See National Ass'n of Home Builders v. Babbitt, 949 F. Supp. 1, 27 ELR 20707 (D.D.C. 1996) (stating, in an ESA § 9 case, that the Commerce Clause provides Congress with broad regulatory authority) (quoting Hughes v. Oklahoma, 441 U.S. 322, 326 n.2, 9 ELR 20360, 20361 n.2 (1979) ("the Commerce Clause is one of the most prolific sources of national power.").

133. See Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 7 ELR 20442 (1977).

134. 431 U.S. 265, 7 ELR 20442 (1977).

135. Id. at 281-82, digested at 7 ELR 20442 (available from the ELR Document Service, ELR Order No. C-1120).

136. Id. at 282, digested at 7 ELR 20442 (available from the ELR Document Service, ELR Order No. C-1120).

137. 444 U.S. 51, 9 ELR 20791 (1979). See Missouri v. Holland, 252 U.S. 416 (1920) (holding that the Migratory Bird Treaty Act is a valid exercise of treaty power).

138. 471 F. Supp. at 985, 9 ELR at 20426.

139. Id. at 995, 9 ELR at 20429.

140. 16 U.S.C. §§ 668-668d.

141. 103 F.3d 1475 (9th Cir. 1997).

142. United States v. Lopez, 514 U.S. 549 (1995).

143. National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997).

144. 514 U.S. 549 (1995).

145. Id. at 558-59.

146. Id.

147. Id. at 557.

148. 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997). See infra note 299 and accompanying text.

149. See National Ass'n of Home Builders, 130 F.3d at 1054, 28 ELR at 20408 ("The few federal courts that have considered post-Lopez challenges to federal wildlife protection have found that the extinction of animals substantially affects interstate commerce.").

150. U.S. CONST. amend. X.

151. 441 U.S. 322, 335, 338-39, 9 ELR 20360, 20364-65 (1979).

152. 16 U.S.C. §§ 669-669i, 777-777l.

153. The MMPA, for example, specifically prohibits any state from enforcing state laws relating to the taking of marine mammals unless conservation and management authority have been transferred to the state. Id. § 1379, ELR STAT. MMPA § 109. The MSFCMA does not expressly preempt state regulation of fisheries within state waters, but preemption is implied if there is actual conflict between state and federal regulations making dual compliance impossible. Southeastern Fisheries Ass'n v. Mosbacher, 773 F. Supp. 435, 439 (D.D.C. 1991).

154. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Mistretta v. United States, 488 U.S. 361 (1989); see also infra note 347.

155. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 865-66, 14 ELR 20507, 20514 (1984) (discussing agencies' administration of statutes "in light of everyday realities").

156. 16 U.S.C. § 3.

157. 552 F.2d 817, 7 ELR 20366 (8th Cir. 1977), cert. denied, 431 U.S. 949 (1977).

158. 857 F.2d 1324, 18 ELR 21430 (9th Cir. 1988).

159. Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995) ("waters of the United States" include isolated waters) and Mills v. United States, 36 F.3d 1052, 25 ELR 20278 (11th Cir. 1994) ("waters of the United States" include wetlands). Compare American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), modified on reh'g, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999), (nondelegation doctrine), and Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155 (4th Cir. 1998), aff'd. No. 98-1152, 2000 WL 289576 (U.S. Mar. 21, 2000) (reach of delegated jurisdiction), both discussed infra section II.e.

160. U.S. CONST. amend. V.

161. Id. In United States v. Kaiyo Maru No. 53, the Ninth Circuit held that the due process rights of the owner of a fishing vessel were not violated when the vessel was seized at sea and held as part of a continuing investigation under the MSFCMA. 669 F.2d 989, 13 ELR 20539 (9th Cir. 1983).

162. U.S. CONST. amend. XIV.

163. 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988).

164. 724 F.2d 753, 14 ELR 20317 (9th Cir. 1984).

165. 945 F.2d 254 (9th Cir. 1991).

166. See infra section III.

167. See supra note 23.

168. See supra notes 23-24.

169. See FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965).

170. The APA defines the scope of review in assessing an agency's promulgation of regulations. 5 U.S.C. §§ 701-706, available in ELR STAT. ADMIN. PROC. It provides that:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action. The reviewing court shall—. . . .

. . . .

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; . . . .

Id. § 706, available in ELR STAT. ADMIN. PROC.

171. See United States v. Dortch, 5 F.3d 1057 (7th Cir. 1993), cert. denied, 510 U.S. 1121 (1994).

172. 467 U.S. at 842-43, 14 ELR at 20508-09; see also Sweet Home Chapter of Communities for a Great Or. v. Babbitt, 1 F.3d 1, 5-6, 23 ELR 20314, 20316 (D.C. Cir. 1993) (reviewing a challenge to ESA regulations at 50 C.F.R. Part 17).

173. 515 U.S. 687, 25 ELR 21194 (1995).

174. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985).

175. Earth Island Inst. v. Mosbacher, 929 F.2d 1449, 21 ELR 20843 (9th Cir. 1991).

176. See Udall v. Tallman, 380 U.S. 1 (1965); Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993).

177. See Arkansas v. Oklahoma, 503 U.S. 91, 22 ELR 20522 (1992).

178. See 5 U.S.C. § 706, available in ELR STAT. ADMIN. PROC.; see supra note 23, § 85.

179. See supra note 23, § 88.

180. Id. § 87.

181. 57 F.3d 1517, 25 ELR 21258 (9th Cir. 1995).

182. Resources Ltd. v. Robertson, 35 F.3d 1300 (9th Cir. 1993).

183. 716 F. Supp. 479, 19 ELR 20277 (W.D. Wash. 1988).

184. Carlton v. Babbitt, 900 F. Supp. 526, 26 ELR 20396 (D.D.C. 1995).

185. CHURCHILL & LOWE, supra note 67, at 224.

186. Id. at 224, 227.

187. See UNCLOS, supra note 69.

188. See supra section I, and accompanying discussion.

189. UNCLOS, supra note 69, arts. 2-3. The breadth of the territorial sea is measured from baselines, which are determined by the low water-line along the coast or as otherwise provided in UNCLOS. Id. arts. 3, 5.

190. Id. arts. 56(1), 57.

191. Id. arts. 117-120.

192. Id. arts. 17, 58.

193. See generally COGGINS ET AL., supra note 116, at 10-11, 194-96.

194. The ESA provides protection to both terrestrial and marine species.

195. MUSGRAVE ET AL., supra note 34, at 23.

196. 16 U.S.C. § 1382(a), ELR STAT. MMPA § 112(a).

197. 50 C.F.R. § 216.14(f) (1981). The Secretary of Commerce delegated this authority to NOAA and, in turn, to NMFS. See Balelo v. Baldrige, 724 F.2d 753 n.2, 14 ELR 20317, 20318 n.2 (9th Cir. 1984). The authority relied on in promulgating these regulations was provided by 16 U.S.C. § 1373, ELR STAT. MMPA § 103 (authorizing such regulations as are "necessary and appropriate to ensure" that takings will not be to the disadvantage of marine mammals).

198. 50 C.F.R. § 216.14(f) (1981).

199. See Balelo, 724 F.2d at 755-56, 14 ELR at 20318.

200. Id. at 758, 763, 14 ELR at 20322.

201. Balelo v. Klutznick, 519 F. Supp. 573, 12 ELR 20040 (S.D. Cal. 1981).

202. Balelo, 724 F.2d at 753, 14 ELR at 20317 (en banc), cert. denied, 467 U.S. 1252 (1984).

203. Id. at 759, 14 ELR at 20320.

204. Id. at 764-67, 14 ELR at 20322-24.

205. 50 C.F.R. § 18.3; 39 Fed. Reg. 7262 (Feb. 25, 1974).

206. Katelnikoff v. U.S. Dep't of the Interior, 657 F. Supp. 659 (D. Alaska 1986).

207. 657 F. Supp. 659 (D. Alaska 1986).

208. Id. at 667.

209. 53 Fed. Reg. 45788, 45789 (Nov. 14, 1988); final rule promulgated at 55 Fed. Reg. 14973 (Apr. 20, 1990).

210. 796 F. Supp. 1281 (D. Alaska 1991), aff'd, 982 F.2d 1332 (9th Cir. 1992).

211. 16 U.S.C. § 1371(b), ELR STAT. MMPA § 101(b).

212. Didrickson, 796 F. Supp. at 1289, 1291.

213. 912 F.2d 1087, 20 ELR 21243 (9th Cir. 1990).

214. 50 C.F.R. § 18.3 (1989) (definition of "wasteful manner").

215. 912 F.2d at 1087, 20 ELR at 21243.

216. Id. at 1089, 20 ELR at 21244.

217. Id.

218. 16 U.S.C. § 1371(a)(2)(B)(II)(ii), ELR STAT. MMPA § 101(a)(2)(B)(II)(ii).

219. 50 C.F.R. § 216.24(e)(5)(viii); 55 Fed. Reg. 11929 (Mar. 30, 1990).

220. 929 F.2d 1449, 21 ELR 20843 (9th Cir. 1991).

221. Id.

222. 5 F.3d 905, 24 ELR 20141 (5th Cir. 1993).

223. 50 C.F.R. § 216.3.

224. Strong, 5 F.3d at 905, 24 ELR at 20141.

225. Id.

226. See National Fisheries Inst. v. Mosbacher, 732 F. Supp. 210, 227 (D.D.C. 1990) ("The Magnuson Act grants the Secretary broad authority to promulgate regulations that are necessary and appropriate for the conservation and management of the nation's fishery resources.").

227. See 16 U.S.C. § 1811(a); Pres. Proc. No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983) (setting breadth of fishery conservation zone); Washington v. Daley, 173 F.3d 1158, 1161-62, 29 ELR 21032, 21032 (9th Cir. 1999).

228. 16 U.S.C. § 1852.

229. Id. §§ 1852-1861; see Washington, 173 F.3d at 1162, 29 ELR at 21032.

230. Id. § 1854(a)(1)(A); see Washington, 173 F.3d at 1162, 29 ELR at 21032.

231. Id. § 1854(a)-(b); see Washington, 173 F.3d at 1162, 29 ELR at 21032.

232. Id. § 1854(c)(1); see Washington, 173 F.3d at 1162, 29 ELR at 21032-33.

233. 563 F.2d 1052, 7 ELR 20790 (1st Cir. 1977).

234. Id.

235. Id. at 1056, digested at 7 ELR 20762 (available from the ELR Document Service, ELR Order No. C-1136).

236. Id. at 1055, digested at 7 ELR 20762 (available from the ELR Document Service, ELR Order No. C-1136).

237. 55 Fed. Reg. 14833 (Apr. 19, 1990).

238. See 50 C.F.R. § 642.2.

239. 931 F.2d 1556, 1559, 21 ELR 21372, 21373 (D.C. Cir. 1991).

240. Id. at 1562, 21 ELR at 21374.

241. Id. at 1563, 21 ELR at 21375.

242. 58 Fed. Reg. 59375 (Nov. 9, 1993).

243. Alliance Against IFQs v. Brown, 84 F.3d 343, 351 (9th Cir. 1996), cert. denied, 520 U.S. 1185 (1997) stating that:

The statute provides that "nothing in this [Act] shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries." 16 U.S.C. § 1856(a). If the Secretary finds "after notice and an opportunity for hearing" that "any state has taken any action . . . which will substantially and adversely affect the carrying out of [his] fishery management plan," then "the Secretary shall promptly notify such State and the appropriate Council of such finding and of his intention to regulate the applicable fishery within the boundaries of such State."

16 U.S.C. § 1856(b)(1).

244. 84 F.3d 343 (9th Cir. 1996), cert. denied, 520 U.S. 1185 (1997).

245. Id. at 348-49.

246. Id. at 352.

247. 773 F. Supp. 435 (D.D.C. 1991).

248. Id. at 441 (citing 16 U.S.C. § 1856(a)(3)).

249. 732 F. Supp. 210 (D.D.C. 1990).

250. 63 Fed. Reg. 37765 (Sept. 1, 1998).

251. 732 F. Supp. at 210.

252. Id. at 214.

253. Id. (citing National Labor Relations Bd. v. United Food & Commercial Workers Union, 484 U.S. 112 (1987); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984)).

254. Id. at 216, 227.

255. Id. at 217. The court paraphrased Chevron: "The Secretary's decision to implement the FMP represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasonable fashion, and the decision involves reconciling conflicting policies." Id.

256. "Bycatch" is defined in the MSFCMA as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic and regulatory discards." 16 U.S.C. § 1802(2). Bycatch results in 17.9 to 39.5 million tons of the world's commercial fish catch being discarded. NOAA TECHNICAL MEMORANDUM, OUR LIVING OCEANS (NMFS-F/SPO-41) 43 (June 1999). "Bycatch" is also used to refer to the incidental catch of marine mammals during commercial fishing. See NMFS, MARINE MAMMAL PROTECTION ACT OF 1972 ANNUAL REPORT 30, 39 (1997) (referring to Harbor Porpoise and Atlantic Large Whale Take Reduction Plans).

257. See 50 C.F.R. § 223.206; id. § 648.80.

258. 63 Fed. Reg. 18139 (Apr. 14, 1998).

259. No. 4:98CV101-RH (N.D. Fla. Nov. 3, 1999).

260. 16 U.S.C. § 1855(f)(1)(B).

261. Florida Wildlife Federation, slip op. at 49.

262. 16 U.S.C. § 1536(a), ELR STAT. ESA § 7(a).

263. 61 Fed. Reg. 28786 (June 6, 1996); 50 C.F.R. § 660.324.

264. 173 F.3d 1158, 29 ELR 21032 (9th Cir. 1999).

265. Id. at 1169, 29 ELR at 21036.

266. Id. at 1170-71, 29 ELR at 21036.

267. Compare, for instance, the take prohibitions of the ESA and the MMPA (16 U.S.C. § 1538(a), ELR STAT. ESA § 9(a), and 16 U.S.C. § 1372(a), ELR STAT. MMPA § 102(a), respectively), the ESA's listing procedure and the MMPA's designation procedure (16 U.S.C. § 1533, ELR STAT. ESA § 4, and 16 U.S.C. § 1383b, ELR STAT. MMPA § 602, respectively), and the general rulemaking authority of both acts (16 U.S.C. §§ 1533(d), 1540(f), ELR STAT. ESA §§ 4(d), 11(f), and 16 U.S.C. § 1382, ELR STAT. MMPA § 112, respectively). The ESA also refers back to the MMPA in several places, relying on MMPA procedures for regulating native subsistence hunts of listed species, requiring that ESA § 7 consultations involving marine mammals meet MMPA requirements, and providing that no part of the ESA "shall take precedence over any more restrictive conflicting provision of the Marine Mammal Protection Act of 1972." 16 U.S.C. §§ 1536(b)(4), 1539(e)(4), 1543, ELR STAT. ESA §§ 7(b)(4), 10(e)(4), 17.

268. See 50 C.F.R. §§ 17.2(b), 17.11 (list of endangered and threatened species under both FWS and NMFS jurisdiction) and 50 C.F.R. §§ 223.102, 224.101 (list of endangered and threatened species under NMFS jurisdiction).

269. The ESA provides that the term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19), ELR STAT. ESA § 3(19).

270. See 50 C.F.R. pt. 223, subpt. B—Restrictions Applicable to Threatened and Anadromous Species (specifying prohibitions relating to threatened sea turtles, fur seals, and sea lions).

271. See 50 C.F.R. § 17.31(a) ("Except as [otherwise] provided . . . , all of the provisions in § 17.21 (endangered wildlife prohibitions) shall apply to threatened wildlife . . . .").

272. 1 F.3d at 1, 23 ELR at 20314, modified, 17 F.3d at 1463, 24 ELR at 20680, rev'd on other grounds, 115 S. Ct. at 2407, 25 ELR at 21194.

273. 50 C.F.R. § 17.3. NMFS has defined "harm" to include "significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering." 64 Fed. Reg. 60727 (Nov. 8, 1999). See 16 U.S.C. § 1532(19). ELR STAT. ESA § 3(19) (definition of take).

274. 649 F. Supp. 1070, 17 ELR 20514 (D. Haw, 1986), aff'd, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988) (Palila II).

275. 515 U.S. at 687, 25 ELR at 21194.

276. Id. at 698, 25 ELR at 21196.

277. See 50 C.F.R. § 17.84(i). The FWS has also promulgated regulations providing for the reintroduction of experimental populations of, inter alia, red wolves, Delmarva Peninsula fox squirrels, California condors, Guam rails, Colorado squawfish, and southern sea otters. 50 C.F.R. §§ 17.84(a) et seq.

278. 142 F.3d 1170, 28 ELR 21197 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999).

279. 199 F.3d 1224, 30 ELR 20289 (10th Cir. 2000).

280. McKittrick, 142 F.3d at 1173, 28 ELR at 21198.

281. Id.

282. Id. at 1173-74, 28 ELR at 21198-99.

283. Id. at 1173, 28 ELR at 21198.

284. Wyoming Farm Bureau Fed'n, 199 F.3d at 1237, 30 ELR at 20294.

285. See 50 C.F.R. § 223.206; id. § 648.80.

286. 853 F.2d at 322, 18 ELR at 21351.

287. Id. at 331, 18 ELR at 21355-56.

288. Id.

289. See United States v. Lopez, 514 U.S. 549, 558-59 (1995).

290. 50 C.F.R. § 17.84(c). See 60 Fed. Reg. 18940 (Apr. 13, 1995).

291. Gibbs v. Babbitt, 31 F. Supp. 2d 531, 533 (E.D.N.C. 1998) (citing 1994 N.C. Sess. Laws Ch. 635 (July 1, 1994), which declared it "lawful for a private landowner . . . to trap and kill red wolves that are on the landowner's property" if the wolves present a threat to persons or livestock and the landowner first asks the FWS to remove them).

292. 31 F. Supp. 2d 531 (E.D.N.C. 1998).

293. Id.

294. Id. at 535.

295. Id.

296. Id. at 535-36.

297. 979 F. Supp. 893, 906 (D.D.C. 1997).

298. Id. at 907.

299. 130 F.3d at 1041, 28 ELR at 20403.

300. National Ass'n of Home Builders, 130 F.3d at 1043, 28 ELR at 20403.

301. National Ass'n of Home Builders v. Babbitt, 524 U.S. 937 (1998).

302. See 36 C.F.R. § 13.65.

303. See 33 C.F.R. §§ 169.1 et seq.

304. 467 U.S. at 837, 14 ELR at 20507.

305. Id. at 842, 14 ELR at 20508.

306. Id. at 842-43, 14 ELR at 20508-09.

307. Id. at 843, 14 ELR at 20509.

308. Id. at 842. See supra note 23.

309. 153 F.3d at 155 (4th Cir. 1998), aff'd, 2000 WL 289576, at *1. The Winter 2000 edition of Administrative and Regulatory Law News states that this is the "most celebrated" regulatory case awaiting Supreme Court review, in which a "brooding omnipresence is . . . what role Chevron should play in the Court's analysis of FDA's interpretation of the [Food, Drug, and Cosmetic Act]." Administrative and Regulatory Law News, ADMIN. & REG. L. NEWS, Winter 2000, at 18.

310. 175 F.3d at 1027, 29 ELR at 21071, modified on reh'g, 195 F.3d at 4, 30 ELR at 20119, petition for certiorari granted (May 22 and 30, 2000). American Trucking, which overturned EPA regulations that the court found were premised on an unconstitutional delegation of authority, was described as "probably the highest visibility case in the circuits" in the Winter 2000 Administrative and Regulatory Law News. See ADMIN. & REG. L. NEWS, supra note 309.

311. See supra notes 309 and 310 and infra notes 332, 333, 360, 369, 370 and accompanying text.

312. Brown & Williamson, 153 F.3d at 168-70.

313. 61 Fed. Reg. 44396 (Aug. 28, 1996).

314. Id. at 44508, 44619.

315. 21 U.S.C. §§ 301-397.

316. Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997).

317. Id. at 1388, 1393-400.

318. 153 F.3d at 155.

319. Id. at 161. The court stated that those tools were: the overall statutory scheme, legislative history, the history of evolving congressional regulation in the area, and consideration of other relevant statutes. Id at 162.

320. Id. at 163. The Act defines "drug" as "articles (other than food) intended to affect the structure or any function of the body of man or other animals." 21 U.S.C. § 321(g)(1)(C). "Device" is defined as

an article which is intended to affect the structure or any function of the body of man or other animals, and which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes.

21 U.S.C. § 321(h)(3).

321. Brown & Williamson, 153 F.3d at 163.

322. Id. at 163, 166. See 21 U.S.C. § 360c(a)(1).

323. Brown & Williamson, 153 F.3d at 166-67.

324. Id. at 168-76.

325. Id. at 161 (citing Ernst & Young v. Hochfelder, 425 U.S. 185, 213-14 (1976)).

326. Id. at 162, 167, 176. The court quoted Federal Maritime Comm'n v. Seatrain Lines, Inc., 411 U.S. 726, 745 (1973), warning that federal agencies "may not bootstrap [themselves] into an area in which [they] have no jurisdiction."

327. See Brown & Williamson, 153 F.3d at 163.

328. See supra notes 312 and 315.

329. Brown & Williamson, 153 F.3d at 161.

330. Id. at 176.

331. Oklahoma Natural Gas Co. v. Federal Energy Regulatory Comm'n, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994) (in holding that the Federal Energy Regulatory Commission's determination that it had jurisdiction over a natural gas pipeline should receive Chevron deference, the court noted that the Supreme Court has not directly ruled on whether an agency should receive deference on questions of jurisdiction but has done so in practice) (citing Reiter v. Cooper, 507 U.S. 258 (1993); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 844-45 (1986); National Labor Relations Bd. v. City Disposal Sys., Inc., 465 U.S. 822, 830 n. 7 (1984)).

332. Brown & Williamson, 153 F.3d at 176.

333. Id. The Solicitor General, in his appellate brief, asserted that the regulations involved "the most important public health and safety rulemaking that FDA has conducted in the past 50 years." Brown & Williamson Tobacco Corp. v. FDA, No. 98-1152, 2000 WL 289576 (U.S. Mar. 21, 2000).

334. 2000 WL 289576, at *8, *13.

335. Id. at *22.

336. Id.

337. Id.

338. Id. at *24.

339. Id. at *23-*24.

340. Id. at *41.

341. See 42 U.S.C. §§ 7408-7409, ELR STAT. CAA §§ 108-109.

342. Id. § 7409(b)(1), ELR STAT. CAA § 109(b)(1).

343. 44 Fed. Reg. 8202 (Feb. 8, 1979).

344. 62 Fed. Reg. 38856 (July 10, 1997).

345. American Trucking Ass'n v. EPA, 175 F.3d 1027, 1034, 29 ELR 21071, 21071 (D.C. Cir. 1999), 42 U.S.C. § 7607(b)(1), ELR STAT. CAA § 307, provides that "a petition for review of action of the Administrator in promulgating any [NAAQS] . . . may be filed only in the United States Court of Appeals for the District of Columbia."

346. American Trucking, 175 F.3d at 1034, 29 ELR at 21071.

347. Id. The nondelegation doctrine, which is based on the separation-of-powers principle, prohibits Congress from delegating its legislative power to another branch of government. Congress may delegate to the executive branch the authority to fill in details of legislation if it provides "intelligible principles" to guide and constrain the exercise of that authority. See Mistretta v. United States, 488 U.S. 361, 371 (1989).

348. 62 Fed. Reg. at 38863.

349. American Trucking, 175 F.3d at 1034, 29 ELR at 21072.

350. Id. at 1034-35, 29 ELR at 21072, EPA criteria for assessing health effects of nonthreshold pollutants in setting NAAQS are "the nature and severity of the health effects involved, the size of the sensitive populations(s) at risk, the types of health information available, and the kind and degree of uncertainties that must be addressed." 62 Fed. Reg. at 38883.

351. American Trucking, 175 F.3d at 1035, 29 ELR at 21072.

352. Id.

353. Id. at 1038, 29 ELR at 21073.

354. Id. at 1038-40, 29 ELR at 21073-74.

355. Id. at 1057, 29 ELR at 21081.

356. Id. at 1058-59, 29 ELR at 21081-82. See 42 U.S.C. §§ 7408(a)(2), 7607(d)(3), ELR STAT. CAA §§ 108(a)(2), 307(d)(3).

357. American Trucking Ass'n v. EPA, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999).

358. Id. at 8, 30 ELR at 20120.

359. Id.

360. Judge Tatel cited, inter alia, the Federal Communication Commission's general authority to issue regulations "as necessity requires," upheld in United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968); the Price Administrator's authority to fix "fair and equitable" commodities prices, upheld in Yakus v. United States, 321 U.S. 414, 426-27 (1944); the Federal Power Commission's authority to determine "just and reasonable" rates, upheld in Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 600 (1968); and the First Circuit'srejection of a similar nondelegation challenge to the CAA's delegation of authority to establish standards "requisite to protect the public health" in South Terminal Corp. v. EPA, 504 F.2d 646, 677, 4 ELR 20768, 20781 (1st Cir. 1974). American Trucking, 175 F.3d at 1057-58, 29 ELR at 21081. See generally Kevin B. Covington, Federal Appellate Court Revives the Nondelegation Doctrine in Environmental Case, 73 FLA. B.J. 81, 83 (1999), which states:

While some commentators have declared the nondelegation doctrine to be a dead relic from New Deal era jurisprudence . . . [the Supreme Court in Mistretta] characterized its nondelegation jurisprudence as "driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." Surely modern regulation in the environmental arena in general, and the establishment of NAAQS in particular, qualifies as "complex" and "technical," thus similarly allowing Congress to delegate power to the EPA under broad general directives.

See also Melanie E. Walker, Congressional Intent and Deference to Agency Interpretations of Regulations, 66 U. CHI. L. REV. 1341, n.67 (1999) (citing American Trucking as the counter-example to the proposition that it "is essentially unquestioned today that Congress has broad power to delegate policymaking authority to agencies."); Recent Cases, 113 HARV. L. REV. 1051, 1054 (2000) stating that American Trucking:

Ignored legal precedents and threatened the policies underlying the [nondelegation] doctrine. Supreme Court delegation cases have focused on the legislature's actions, rather than the delegee's interpretation of the extent of its discretion . . . . Most strikingly, the [Supreme] Court, in acquiescing in all delegations on which it has ruled in the past sixty-five years, has never addressed the issue of an agency's construction of its own authority. Indeed, if the doctrine is meant to limit Congress's ability to delegate its legislative authority, it is difficult to see how the recipient of the delegation, rather than Congress itself, can remedy the problem.

See Administrative and Regulatory Law News, 25 ADMIN. & REG. L. NEWS 19 (referring to the nondelegation doctrine relied on in American Trucking as "a novel theory of law"); compare Mistretta v. United States, 488 U.S. 361, 374 n.7 (1989) (nondelegation doctrine requires narrow construction of statutes that might otherwise be unconstitutional); International Union, UAW v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991) (statutory criteria of "lock out rule"); South Terminal Corp., 504 F.2d at 660, 4 ELR at 20772 (setting aside a provision of the rule as standardless).

361. See infra note 367.

362. 175 F.3d at 1027, 29 ELR at 21071, modified on reh'g, 195 F.3d at 4, 30 ELR at 20119, petition for cert. granted (May 22 and 30, 2000).

363. United States v. Morton Salt, 338 U.S. 632 (1950).

364. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976) (quoting Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129 (1936)).

365. Haig v. Agee, 453 U.S. 280, 291 (1981), quoted in, Balelo v. Baldrige, 724 F.2d 753, 759, 14 ELR 20317, 20320 (9th Cir. 1984)).

366. Mourning v. Family Pubs. Serv., Inc., 411 U.S. 356, 369 (1973), quoted in, Balelo, 724 F.2d at 760, 14 ELR at 20320.

367. The MMPA directs that the "Secretary . . . shall prescribe such regulations as are necessary and appropriate to carry out the purposes of [the MMPA]," 16 U.S.C. § 1382(a), ELR STAT. MMPA § 112(a); the ESA provides that the Secretary is "authorized to promulgate such regulations as may be appropriate to enforce [the ESA]," id. § 1540(f), ELR STAT. ESA § 11(f); see also id. § 1533(b)(8), ELR STAT. ESA § 4 (publication of regulations "necessary and appropriate to carry out the purposes of [the ESA]") and 1533(d), ELR STAT. ESA § 4(d) (authority to issue regulations the Secretary "deems necessary and advisable to provide for the conservation of [threatened] species"); and the MSFCMA provides that FMPs prepared by Councils or the Secretary shall contain, inter alia, conservation and management measures "necessary and appropriate for the conservation and management of the fishery." Id. § 1853(a)(1)(A). See also id. § 1853(b)(12).

368. Legal realism is a theory of law that holds that the exact meaning of a legal proposition depends on context and is, to a large degree, simply a means of predicting what a judge will decide when the issue goes to court. See RONALD DWORKIN, LAW'S EMPIRE 36, 95, 153 (1986). Dworkin contrasts legal pragmatism, which holds that judges make whatever decisions seem best for the community without regard to consistency with past decisions, though acting as if consistency with past decisions guides their decisions. Id. at 151-53. Consider Trans World Airlines, Inc., v. Franklin Mint Corp., 466 U.S. 243, 282-83 (1984) (interpreting the Warsaw Convention liability limit) (dissenting opinion of Justice Stevens), in which Justice Stevens challenges legal realism as a cynical misunderstanding of the nature of judicial work, but complains that the theory is given credibility when the Court bases its holding on notions of policy rather than the state of the law:

Some students of the Court take for granted that our decisions represent the will of the judges rather than the will of the law. This dogma may be the current fashion, but I remain convinced that such remarks reflect a profound misunderstanding of the nature of our work. Unfortunately, however, cynics—parading under the banner of legal realism—are given a measure of credibility whenever the Court bases a decision on its own notions of sound policy, rather than on what the law commands. It does so today. The task of revising an international treaty is not one that this Court has any authority to perform. I respectfully dissent.

Id. Some students of the Court might argue that the question is not the nature of the work but, rather, the nature of the nominated workers, as illustrated in the skirmishing associated with nominations. The fact remains that nine highly educated justices with legions of experts in legal doctrine to assist them can, in facing a fully developed case with briefs from all sides and exhaustive lower court opinions, split 5 to 4 on the correct legal answer—as aptly demonstrated in Brown & Williamson. Are the four dissenters wrong? The positivist says yes, they were wrong all along. The realist says yes, they were wrong once the voting finished.

369. See supra notes 309, 310, 332, 333 and accompanying text. See also Joseph A. Fazioli, Chevron Up In Smoke?: Tobacco at the Crossroads of Administrative Law, Brown & Williamson Tobacco Corp. v. FDA, 22 HARV. J.L. & PUB. POL'Y 1057, 1058, 1080 (1999). Citing Lopez and American Trucking, Fazioli states:

The Fourth Circuit's decision [in Brown & Williamson] denying the FDA jurisdiction over tobacco products has broad implications for the modern doctrine of administrative law established in large part by the Supreme Court's landmark decision in Chevron, U.S.A., Inc. v. National Resources Defense Council . . . [and] appears designed to advance the broader judicial trend toward reversing the power and scope of the federal government. Recent judicial decisions foreshadow a potential reinvigoration of the Commerce Clause and the delegation doctrine as constitutional barriers to federal power.

Id.

370. Of note, while federal regulators may deem the extent to which courts will uphold their rulemaking a moving target. Chief Judge Holland of the U.S. District Court for the District of Alaska has expressed similar frustration with the regulators:

[the federal district court judge] described the Government's position on what uses of sea otter pelts were permissible as a "moving target," and expressed "doubt . . . that the Government has fully and adequately considered the possibility of establishment of bona fide, eighteenth century uses of sea otter pelts which would not be precluded by the clear language of 50 C.F.R. § 18.3."

Didrickson v. Department of the Interior, 982 F.2d 1332, 1336 (9th Cir. 1992).

371. See supra sections II and III.

372. None of the Acts specifically address the types of activities at issue in section III(b)(1) and (2).

373. The Blue whale (Balaenoptera musculus); Bowhead whale (Balaena mysticetus); Fin or finback whale (Balaenoptera physalus); Humpback whale (Megaptera novaeangliae); Northern right whale (Eubalaena spp.); Sei whale (Balaenoptera borealis); Sperm whale (Physeter catodon); and Western North Pacific (Korean) gray whale (Eschrichtius robustus). 50 C.F.R. § 224.101(b).

374. NMFS, FINAL RECOVERY PLAN FOR THE NORTHERN RIGHT WHALE iv (1991). See infra note 378 (regulatory measures). The right whale received its name because, based on its commercially valuable oil and baleen plates, slow swimming speed, characteristic of floating when dead, and generally coastal distribution, it was considered the "right" whale to kill by hunters who pursued it for over 800 years, lasting well into the 20th century. See RECOVERY PLAN, id. at 1; NMFS, Office of Protected Resources, Northern Right Whales (visited Aug. 30, 2000) http://www.nmfs.noaa.gov/prot_res/cetacean/right.html.

375. See RECOVERY PLAN, supra note 374, at 1, 9-11.

376. See NMFS, Office of Protected Resources, Northern Right Whale (Eubalaena glacialis) (visited Aug. 30, 2000) http://www.nmfs.gov/prot_res/cetacean/rtwfacts.html.

377. See id.; RECOVERY PLAN, supra note 374, at 1.

378. See NMFS, Office of Protected Resources, supra note 376.

379. Id.

380. 16 U.S.C. § 1533(f), ELR STAT. ESA § 4(f).

381. RECOVERY PLAN, supra note 374, at 13-19, 47-49.

382. Id. at 19, §§ 51, 53. The Northern Humpback Whale Recovery Plan also "places high priority on reducing any detrimental effects of directed vessel interactions with that species, specifically in regard to collisions with ships or boats." NMFS, Advance Notice of Proposed Rulemaking for Whale Watch Regulations in the Northeast Region, 65 Fed. Reg. 270, 271 (Jan. 4, 2000) [hereinafter Whale Watch ANPR].

383. Whale Watch ANPR, supra note 382, at 271.

384. Id.

385. See id. and NMFS proposed approach rule for humpback whales in Alaska, 65 Fed. Reg. 39336 (June 26, 2000).

386. Whale Watch ANPR, supra note 382, at 271.

387. Id.

388. Id.

389. Id.

390. The MMPA does provide general authority for the Secretary to issue permits for the taking of marine mammals. 16 U.S.C. § 1374, ELR STAT. MMPA § 104.

391. See id. § 1382(a), ELR STAT. MMPA § 112(a); id. § 1540(f), ELR STAT. ESA § 11(f). See also id. § 1533(b)(8), (d), ELR STAT. ESA § 4(b)(8), (d).

392. 36 C.F.R. § 13.65. See National Park Service, supra note 99 and accompanying text. In addition to commerce clause authority, these regulations may be deemed a proper exercise of Property Clause authority. See United States v. Brown, 552 F.2d 817, 7 ELR 20366 (8th Cir. 1977). (upholding NPS regulations prohibiting firearms and hunting in national parks as a proper exercise of Property Clause authority delegated to the agency under its organic statute).

393. See Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 29 ELR 20524 (8th Cir. 1999).

394. Id. (the Forest Service regulations were a reasonable and permissible construction of the Boundary Waters Canoe Area Wilderness Act; the Act does not prescribe the type of regulatory schemes that may be used).

395. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984), and supra note 23. See also Strong v. United States, 5 F.3d 905, 24 ELR 20141 (5th Cir. 1993) (upholding NMFS regulations prohibiting dolphin feeding, despite statutory silence on the precise issue, based on Chevron analysis of agency's construction of the MMPA).

396. Chevron, 467 U.S. at 842, 14 ELR at 20508.

397. See 16 U.S.C. § 1382(a), ELR STAT. MMPA § 112(a); id. § 1540(f), ELR STAT. ESA § 11(f). See also id. § 1533(b)(8), (d), ELR STAT. ESA § 4(b)(8), (d).

398. Chevron, 467 U.S. at 843-44, 14 ELR at 20508-09. But see Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 161 (4th Cir. 1998) ("we note, with emphasis, that the Supreme Court has stated that 'a precondition to deference under Chevron is a congressional delegation of authority.'") (citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990)); see also supra notes 331-33 and 335-36 and accompanying text.

399. See Katelnikoff v. Department of the Interior, 657 F. Supp. 659 (D. Alaska 1986), United States v. Clark, 912 F.2d 1087, 20 ELR 21243 (9th Cir. 1990), Strong v. United States, 5 F.3d 905, 24 ELR 20141 (5th Cir. 1993); Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 30 ELR 20289 (10th Cir. 2000); Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988).

400. Whale Watch ANPR, supra note 382, at 271.

401. Balelo v. Baldrige, 724 F.2d 753, 756, 14 ELR 20317, 20318 (9th Cir. 1984); Katelnikoff, 657 F. Supp. at 663.

402. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 8 ELR 20513, 20520 (1978).

403. 16 U.S.C. § 1374(c)(3), ELR STAT. MMPA § 104(c)(3) (MMPA scientific research permits) and § 1539(a)(1)(A), ELR STAT. ESA § 10(a)(1)(A) (ESA scientific research permits).

404. Id. §§ 1374(c)(4)(A), ELR STAT. MMPA § 104(c)(4)(A) (MMPA permits for "enhancing the survival or recovery of a species or stock") and 1539(a)(1)(A), ELR STAT. ESA § 10(a)(1)(A) (ESA permits for actions that "enhance the propagation or survival" of listed species).

405. Only the MMPA provides for photography permits, which may be issued for "educational or commercial purposes." Id. § 1374(c)(6), ELR STAT. MMPA § 104(c)(6).

406. A scientific research permit is not required in order to conduct research confined to reviewing and analyzing existing marine mammal data. Field research involving marine mammal tagging and biopsies would, on the other hand, result in takes for which a permit is required.

407. Id. § 1539(a), ELR STAT. ESA § 10(a).

408. One further argument might be that not all whale watching in the Northeast involves endangered whales and, therefore, the regulations would exceed ESA authority. This analysis, however, presumes that the regulations would be promulgated under the authority of both the ESA and the MMPA, which covers all whales. Furthermore, even if the regulations were promulgated solely under the authority of the ESA, it would seem reasonable to cover all large whale species rather than expect lay persons and enforcement officers to differentiate between species.

409. In fact, the MMPA provides that the Secretary may issue general permits for the "taking of marine mammals" together with regulations covering the use of such permits. Id. § 1374(h), ELR STAT. MMPA § 104(h).

410. See Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 866, 14 ELR 20507, 20514 (1984). It seems both counterintuitive and inconsistent with the purposes of the ESA to conclude that a permit scheme designed to control an increasing threat to whales, listed and otherwise, would fail under a mechanistic reading of either Act.

411. Presumably. But see alternative regime proposed at infra note 413.

412. In other words, any person could engage in whale watching provided that they did not violate the approach limit. Persons wishing to approach closer would be in violation of the rule unless they held a whale watch or other type of permit.

413. See 16 U.S.C. § 1539(a), ELR STAT. ESA § 10(a).

414. See 153 F.3d at 155, aff'd, 2000 WL 289576 at *1.

415. See, e.g., Strahan v. Linnon, 966 F. Supp. 111, 27 ELR 21349 (D. Mass. 1997), aff'd, 1998 WL 1085817 (1st Cir. 1998) (application of the ESA and the MMPA to Coast Guard operations).

416. See American Trucking, 175 F.3d at 1027, 29 ELR at 21071, modified on reh'g, 195 F.3d at 4, 30 ELR at 20119, petition for cert. granted (May 22 and 30, 2000).

417. See id.

418. In American Trucking, the court scrutinized the means by which EPA selected the level of exposure on which it would base the NAAQS for ozone. Id.

419. Administration of a whale watch permit scheme could conceivably involve some control over numbers of takes.

420. See Balelo v. Baldrige, 724 F.2d 753, 756, 14 ELR 20317, 20318 (9th Cir. 1984); Katelnikoff v. Department of the Interior, 657 F. Supp. 659, 663 (D. Alaska 1986); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 8 ELR 20513, 20520 (1978). The regulations would either be reasonably designed to protect and recover whales or they would not.

421. See supra notes 310, 360 and accompanying text.

422. Mourning v. Family Pubs. Serv., Inc., 411 U.S. 356, 369 (1973), quoted in, Balelo, 724 F.2d at 760, 14 ELR at 20318. See also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 14 ELR 20507, 205078-09 (1984) ("The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.") (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).

423. 16 U.S.C. § 1387(f)(1), ELR STAT. MMPA § 118(f)(1).

424. Id. § 1387(f), ELR STAT. MMPA § 118(f).

425. Id. § 1387(f)(6)(C), ELR STAT. MMPA § 118(f)(6)(C).

426. Id.

427. Id. Regulations implementing take reduction plans are codified at 50 C.F.R. §§ 229.31 et seq. MSFCMA regulations cross-reference these regulations at 50 C.F.R. § 600.705(d). But see 50 C.F.R. § 648.87 (implementing harbor porpoise take reduction plan requirements within MSFCMA regulations).

428. 16 U.S.C. § 1387(f)(9), ELR STAT. MMPA § 118(f)(9).

429. Id. § 1387(f)(9)(B), ELR STAT. MMPA § 118(f)(9)(B).

430. RECOVERY PLAN, supra note 374, at 11. See NMFS, MARINE MAMMAL PROTECTION ACT OF 1972 ANNUAL REPORT 67 (1997) [hereinafter ANNUAL REPORT].

431. See ANNUAL REPORT, supra note 430, at 73.

432. The Northern Right Whale Recovery Plan recommends the development or modification of "fishing gear to reduce the threat of entrapment or entanglement." RECOVERY PLAN, supra note 374.

433. See supra notes 257-61, 285-88 and accompanying text.

434. See supra note 261 and accompanying text.

435. 16 U.S.C. § 1387(f)(9)(B), ELR STAT. MMPA § 118(f)(9)(B).

436. See supra note 172 and accompanying text.

437. The feasibility, expense, and effectiveness of these requirements should factor in a reasonableness analysis. See Florida Wildlife Fed'n v. Daley, No. 4:98CV101-RH (N.D. Fla. Nov. 3, 1999).

438. See supra note 172 and accompanying text.

439. See NMFS, Office of Protected Resources, supra note 376; RECOVERY PLAN, supra note 374, at 15.

440. RECOVERY PLAN, supra note 374, at 15.

441. Id. The plan specifically recommends: "shift shipping lanes around 'high risk areas during high risk' seasons." Id.

442. See 50 C.F.R. § 226.13 (right whale critical habitat) and infra notes 451-52 and accompanying text.

443. UNCLOS, supra note 69.

444. Id. arts. 2, 11. See CHURCHILL & LOWE, supra note 67, at 52-3.

445. UNCLOS, supra note 69, arts. 17, 21, 22, 24.

446. Safety of Life at Sea Convention, Chapter V, Regulation 8. See Lieutenant Commander Steven D. Poulin, Is Freedom of Navigation Reaching Critical Mass for Nuclear Cargoes?, 42 FED. LAW. 16, 17 (1995).

447. The United States established a double-hull requirement for oil tankers as a condition of port entry under the Oil Pollution Act of 1990. The Act requires that vessels constructed for carrying oil be equipped with a double hull when operating within the U.S. EEZ. Vessels that violate this requirement will be denied port entry. The requirement is phased in between 1995 and 2015, depending on the age and size of the tanker. 46 U.S.C. §§ 1274(a), 3703a, 3715(a).

448. See 64 Fed. Reg. 29229; 33 C.F.R. § 169.1 et seq. The designated reporting areas are associated with, but do not precisely match the boundaries of, designated right whale critical habitat. Id.

449. 64 Fed. Reg. 29229, 29230 (June 1, 1999).

450. 33 U.S.C. §§ 1221, 1230(d); 64 Fed. Reg. at 29229 (codified at 33 C.F.R. § 169.1 et seq.).

451. 33 U.S.C. § 1223.

452. The United States has proposed shipping routes that would move commercial ships and ships carrying hazardous cargo farther off the coast of California and establish northbound and southbound traffic lanes to increase navigational safety and protect environmentally sensitive coastal waters, particularly the Monterey Bay National Marine Sanctuary. The proposal resulted from joint efforts by NOAA and the Coast Guard with U.S. Department of Defense and U.S. Department of State concurrence. This proposal has been submitted to the IMO for approval. See 64 Fed. Reg. 32451 (June 17, 1999); NOAA, News From the Monterey Bay National Marine Sanctuary (visited Aug. 30, 2000) http://www.mbnms.nos.noaa.gov/Educate/newsletters/news_99_summer/newssum99pg7.html.

453. See discussion of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984) and supra note 172.

454. 33 U.S.C. § 1223.

455. See supra note 453.

456. 33 U.S.C. § 1222(1).

457. See supra note 33 and accompanying text.

458. This suggests that the full reach of federal regulatory authority over living marine resources has not been tested. The double-entendre is that more than 90% of the ocean's area remains unexplored and unmapped. See Hearings on the Review of Current Scientific Knowledge of Biodiversity as It Relates to the Marine Environment, 102d Cong. 4 (1991 statement of David Cottingham), cited in, Joyner, supra note 3.

459. Much of the undersea noise caused by supertankers, warships, drilling rigs, explosives, and other sources occupies the same frequency that whales and other marine mammals depend on to search for food, identify predators, find mates, and navigate. The rise of undersea noise is a topic of rapidly growing concern to those involved in living marine resource protection. See MICHAEL JASNY, SOUNDING THE DEPTHS: SUPERTANKERS, SONAR, AND THE RISE OF UNDERSEA NOISE (Natural Resources Defense Council, March 1999). Jasny makes a number of recommendations, including "NOAA exert what authority it has under international customary law and reroute supertankers and large container vessels around National Marine Sanctuaries." Id. at 55. His report quotes Dr. Sylvia Earle, the former Chief Scientist of NOAA:

Undersea noise pollution is like the death of a thousand cuts. Each sound in itself may not be a matter of critical concern, but taken all together, the noise from shipping, seismic surveys, and military activity is creating a totally different environment than existed even 50 years ago. That high level of noise is bound to have a hard, sweeping impact on life at sea. Regulating these sound sources can be difficult, but one has to start somewhere . . . . Its [sic] our whole future that's at stake.

Id.

460. RECOVERY PLAN, supra note 374, at 15.

461. See supra notes 309, 310, 332, 333, 360, 369, 370 and accompanying text.

462. See supra note 23.

463. Pollution from land-based sources can also have a significant impact on living marine species, but the specific source of land-based pollutants are frequently difficult to identify and are not generally regulated under traditional living marine resource statutes. Certain living marine species who spend their lives at sea and in inland waters, such as salmon, are subject to the full panoply of marine and terrestrial impacts.

464. See 467 U.S. at 843-44, 14 ELR at 20508-09.

465. Mourning v. Family Pubs. Serv., Inc., 411 U.S. 356, 369 (1973), quoted in, Balelo v. Baldrige, 724 F.2d 753, 760, 14 ELR 20317, 20320 (9th Cir. 1984).

466. Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 18 ELR 21351 (1988) (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 179, 8 ELR 20513, 20519 (1978)).

467. National Oceanic & Atmospheric Admin., 1998 Year of the Oceans: Ensuring the Sustainability of Ocean Living Resources (visited Sept. 13, 2000) http://www.yoto98.noaa.gov/yoto/meeting/liv_res_316.html.

468. National Oceanic & Atmospheric Admin., 1998 Year of the Ocean: A Survey of International Agreements (visited Sept. 12, 2000) http://www.yoto98.noaa.gov/yoto/meeting/intl_agr_316.html.

30 ELR 11006 | Environmental Law Reporter | copyright © 2000 | All rights reserved