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Article

Abstract

During waning hours of its lame duck session, the 109th Congress passed the first major overhaul of the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) since the 1996 Sustainable Fisheries Act (“SFA”). President Bush signed the Magnuson-Stevens Fishery Conservation and Management Reauthorization of 2006 (“Reauthorization Act”) on January 12, 2007, ushering a new and challenging era in fisheries management. These amendments effected deep changes to the nation’s fishery management laws by, among many other things, strengthening the MSA’s conservation objectives and fostering increased use of controversial, market-based fisheries management systems. The regulated fishing community, non- governmental organizations, and the government itself are still adjusting to the new regime. As is typical following major changes in law, the Reauthorization Act has spurred a great deal of litigation. The reason is simple; the legislative process is one of compromise and negotiation, often fostering vague statutory language and contradictory mandates. Congressional give-and-take that ensures clarity is a rare commodity in Washington. Resulting ambiguity leaves room for interpretation, initially by the administering agency—in this case, the National Marine Fisheries Service (“NMFS”)—and subsequently by litigants offering competing interpretations of the new law’s (and its implementing regulations’) meaning and reach. This cycle followed in the wake of the SFA. Major litigation tested the meaning and limits of the SFA’s new requirement to minimize bycatch and create a “standardized bycatch reporting methodology,” its essential fish habitat provision, and the deadlines the law created for ending overfishing and rebuilding stocks. As explained below, a very similar process is now underway, with many early cases beginning to define the meaning and scope of new provisions of the Reauthorization Act. Few would argue that the Reauthorization Act changes are insignificant. Samuel Rauch, acting head of NMFS, stated: “With [Reauthorization Act mandated] annual catch limits in place this year for all domestic fish populations and the continued commitment of fishermen to rebuild the stocks they rely on, we’re making even greater progress in ending overfishing and rebuilding stocks around the nation.” While many in the fishing industry are heartened by this progress, the cost has been high and there is a feeling that the law’s flexibility is too rarely employed. Conversely, environmental groups frequently challenge the agency for not fully living up to the Act’s requirements. The stakes in legal battles over Reauthorization Act changes are high. Some of the most important of these are discussed below.

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