In 1993, the Center for Marine Conservation (CMC), and other conservation organizations negotiated with the fishing industry to develop a proposal that became the basis for the 1994 amendments to the Marine Mammal Protection Act of 1972 (MMPA).'The take reduction team process is a direct outgrowth of that negotiation. Both the fishing industry and conservation community believed it important to create a multi-party negotiation process to devise strategies for eliminating marine mammal entanglements in commercial fishing gear while maintaining the viability of commercial fisheries. Thus, the mediated take reduction team process was created. Despite difficulties in balancing both the need to reduce marine mammal kills and minimize economic impacts on fishermen, the take reduction team process has successfully produced consensus take reduction plans in three of the five take reduction teams, and has succeeded in establishing better working relationships among the different interest groups. Dialogue that would otherwise not have taken place has resulted in the development of creative research recommendations and strategies to reduce marine mammal entanglement in fishing gear. Facilitators have been essential to the success of the negotiation process; they helped to articulate and address participant concerns, moving participants from posturing to substance in a timely manner. In its evolution, the negotiation process clearly had its growing pains. Initially every take reduction team has to overcome obstacles such as lack of familiarity, acceptance and trust in order to develop a take reduction plan. The dynamics of each take reduction team was unique. The Gulf of Maine Harbor Porpoise Take Reduction Team (GOMTRT), for example, had a lengthy history together in its previous incarnation as the Harbor Porpoise Working Group; moreover, its actions were intimately tied to the New England Fishery Management Council's (NEFMC) ever-changing actions to recover groundfish stocks. While there was familiarity, the GOMTRT's plan was often overtaken by the actions of the NEFMC. In contrast, some members of the Atlantic Offshore Cetacean Take Reduction Team (AOCTRT) were from competing fisheries, a situation that generated suspicion and a general unwillingness to accept the basic premises, let alone the outcome resulting from the group process. Moreover, the debate was colored by the fact that National Marine Fisheries Service (NMFS) had closed at least one of the fisheries represented on the team and there were ongoing, pre-existing gear conflicts among the commercial fishing groups that had little to do with marine mammal conflicts. The Atlantic Large Whale Take Reduction Team (ALWTRT) was unable to reach a consensus due to insufficient negotiation time and the added pressures originating from an ongoing lawsuit on this issue. Yet, throughout all of this the system worked. The facilitators were essential in helping players get past these issues and move through posturing to substance. Those teams that moved quickly through their concerns about the quality of the science-the population and bycatch estimates and the calculation of Potential Biological Removal (PBR)-and into the development of take reduction strategies faired best in this process. Issues of team size and time available to negotiate were also critical. Smaller teams facilitated greater discussion and a sense that all participants could freely express their opinions. While the MMPA's six-month deadline pushed the teams to achieve consensus, participants cited, in two cases, it did not allow sufficient time for consensus to be reached. The process would benefit from two additional meetings-one to review the final plan before it is submitted to NMFS and another during the Evaluation of the Take Reduction Team Process comment period to allow the team to provide feedback to NMFS. In all situations the process provided a framework for dialogue among disparate groups-a dialogue that often resulted in creative research recommendations and strategies to reduce marine mammal entanglement in fishing gear. Adding to the difficulties of team dynamics is the large shift in emphasis from adversarial advocacy to a participatory planning process. The take reduction team process represents a new way of doing business for NMFS, fishermen, and conservation groups. NMFS is struggling with the implementation schedule mandated within the statutory timeframes; incorporation of take reduction plan recommendations into federal regulations, either under the authority of MMPA or through fishery management plans developed by the regional councils under the authority of the Magnuson-Stevens Fishery and Conservation Management Act; the role of the take reduction team in the development of the regulations; and its level of commitment to this process and accountability to the take reduction team. NMFS has yet to realize that consensus is hard-won at all levels. In addition, NMFS has failed to recognize that this multi-party take reduction negotiation process is equally as important to participants as the fishery management council process. Consequently, if the take reduction team process is to be successful, NMFS must also adopt the view that this process is a high priority partnership among itself and all of the various stakeholders. It must expect no less from itself than any of the other active participants. NMFS representatives to the take reduction team must have the ability to both evaluate the consensus from a legal perspective and commit the agency to that consensus. This means that the Regional Administrator, a representative from the National Oceanic and Atmospheric Administration's (NOAA) Office of General Counsel, and a NMFS enforcement officer must be present at crucial times in the negotiating process. In order to prevent the entire process from being undermined, the NMFS representative cannot be passive, but instead must advise the team as to whether the consensus recommendation can be easily implemented and enforced, and whether the research recommendations are achievable. Otherwise team members may conclude the negotiation process and leave with false or unrealistic expectations, a result that undermines the process. To further meet its commitments, NMFS must also implement the take reduction plan within the statutory timeframes set out in the MMPA, provide the necessary resources to achieve, adequate levels of observer coverage, and carry out the research recommendations essential to inform take reduction strategies. These concerns highlight the need for greater resources to implement the take reduction plans but also a greater commitment on the part of NMFS to the process and the plans. Finally, although the take reduction plans have been in force for slightly over a year and some are showing some signs of success, it is too soon to assess the efficacy of the team consensus. Furthermore, when comparing the timetables for implementation of the take reduction plans to the timing of assessment of progress toward reducing takes to below PBR and achieving progress toward the zero mortality rate goal, it is clear that NMFS may not be able to fully evaluate progress under this regime at that time. Nevertheless, most participants look favorably upon the take reduction team process as an alternative to the traditional adversarial notice and comment rulemaking procedures.
Nina M. Young,
The Conservation Of Marine Mammals Using A Multi-Party Approach: An Evaluation Of The Take Reduction Team Process,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol6/iss2/3