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Document Type

Comment

Abstract

After the elections in 1994, the Republican party cited their newly gained power over the Senate and the House of Representatives as a call by Americans for smaller government, deregulation, and a return of power to the states. Political leaders from both sides of the aisle responded in kind, albeit with varying degrees of deference to existing federal based power. In step with this federalist mandate, in late February and early March of 1995, President Bill Clinton announced the Regulatory Reinvention Initiative, to reform the federal regulatory system. Fishery management has become a proving ground of this regulatory reform and the call for return of power to the states. In 1996 the Atlantic lobster fishery became the target of this emerging federalism. Lobster fishery management, it is contended, is a prime example of a federal regulatory scheme that is better suited to state management. As a result, in late March 1996, the National Marine Fisheries Service (NMFS) an- nounced its intention to withdraw approval of the federal Fishery Management Plan for the American Lobster Fishery (Lobster FMP) and implementing regulations. Conservation and management of the lobster fishery, proposed the NMFS, could be managed by the states through the Atlantic States Marine Fishery Commission (ASMFC). The NMFS called upon the ASMFC to further develop its lobster coastal management plan (CMP) and to develop regulations under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA). NMFS cited the President's Regulatory Reinvention Initiative as a reason for its withdrawal of approval of the existing Lobster FMP. NMFS also determined that withdrawal of the Lobster FMP would not compromise the identified resource management and conservation objectives for the fishery. NMFS further supported its action by asserting that withdrawal of the Lobster FMP appeared necessary due to increasing concerns regarding whether the FMP was consistent with Magnuson Act national standards. As a final reason for its action, NMFS expressed its intention that federal management of the American lobster fishery be consistent with state lobster management programs. Despite being heralded as a shift to state management, a detailed analysis of the management scheme provided under the ACFCMA shows that while authority for development of the lobster plan lies with the states, via the ASMFC, there remains a significant role for the federal government acting through the Secretary of Commerce. In fact, withdrawal of approval of the Lobster FMP and its implementing regulations presents opportunities for state and federal cooperation in management of the lobster fishery. The ACFCMA presents novel management opportunities by reducing constraints on the exercise of state jurisdiction over federal waters, as well as by providing the NMFS with greater authority to affect state activities within state waters. Indeed, it is this "blurring" of jurisdictional boundaries that has provided the opportunity at hand. The ability of ASMFC to utilize the enhanced cooperative and jurisdictional authority of state and federal agencies in the management of the lobster fishery may serve as a model for future management of other fisheries. The ASMFC plan will test the willingness of the federal government to serve merely as a conduit for state management measures without overstepping its apparently enlarged authority within state waters. The states, for their part, must exercise sound judgment in the development of an appropriate lobster management regime. Moreover, the states must prove their ability to reach consensus on an ASMFC plan. In order to achieve the goals of the new regulatory regime, the federal government, acting in large part through the NMFS, must conform its regulations and enforcement actions to the ASMFC plan while not arbitrarily exercising such power in a fashion that violates state sovereignty. If successful, their management approach may serve as a model for future fishery management efforts. The purposes of this Comment are three-fold. Part II of this Comment will explore the legislative enactments that have provided the basis for cooperative jurisdiction in fishery management. Part II.A discusses how state and federal authority as originally codified in the Magnuson Act was sharply delineated, and how that delineation gradually gave way to the cooperative management approach embodied in the ACFCMA. The 1996 Amendments to the Magnuson Act, while not directly implicated in the lobster scenario, further compliment the shift towards cooperative jurisdiction, as detailed in Part II.B. Part II.C will closely examine the ACFCMA, the foundation for future lobster fishery management, from the creation of the ASMFC to the Act's specific provisions for state and federal cooperation in fishery management. The second purpose of this Comment is to review the history of lobster fishery management, from the roots of the Magnuson Act FMP through the decision to withdraw it. Part III.A will outline the basic approach to fishery management under the Magnuson Act before turning to the particulars of the federal lobster fishery management plan under Part III.B. Part III.C will discuss the ultimate failure of Amendment Five to the Lobster FMP which was in large part the impetus for the decision to withdraw the plan, as detailed in Part III.D. The final purpose of this Comment is to raise questions concerning potential conflicts that may arise in the transition of lobster fishery management to the ASMFC. Part IV considers two specific obstacles that must be overcome in order to achieve the desired level of state and federal cooperation in fishery management. The effects of these obstacles will be weighed and likely resolutions will be suggested; but most important will be the identification of issues the resolution of which will determine the future success of the plan.

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