CORAL REEFS, FISHING, AND TOURISM: TENSIONS IN U.S. OCEAN LAW AND POLICY REFORM

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1 CORAL REEFS, FISHING, AND TOURISM: TENSIONS IN U.S. OCEAN LAW AND POLICY REFORM by Robin Kundis Craig ABSTRACT In the United States, seven states and territorial jurisdictions have coral reefs: Hawaii, Florida, Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. Reef-based coastal tourism and recreation provide significant economic benefits to the United States benefits that generally exceed those of reef-based commercial fisheries. The coral reef tourism industry requires healthy coral reef ecosystems, and reefs worldwide are in serious trouble. While U.S. coral reefs are subject to a number of anthropogenic stressors, fishing is the one that simultaneously (1) is generally deemed the most damaging to coral reef ecosystems and the biodiversity that makes such reefs attractive to tourists; and (2) has created the most political and legal opposition to coral reef protection. However, a potential win-win solution exists: both scientists and policymakers have recommended the increased use of marine protected areas (MPAs) and marine reserves to protect coral reef ecosystems and their tourism services, a solution that could simultaneously improve reef-based fisheries. Increased use of MPAs and marine reserves requires a legal basis for setting aside areas of the ocean and restricting fishing therein, preferably with some sort of policy priority for protecting marine biodiversity. U.S. law and policy provides a number of legal mechanisms for creating MPAs but creates no clear policy in favor of coral reef or marine biodiversity more generally preservation and protection. As a result, conflicts between fishing interests, on the one hand, and tourism and scientific interests, on the other, have stalled coral reef-based MPA designations at the federal level. Nevertheless, despite a de facto legal preference for fishing, a tension between fishing promotion and coral reef ecosystem protection has been emerging in U.S. law and policy, indicating that modification of U.S. federal law is necessary to promote coral reef ecosystem preservation and restoration. This article explores developments in U.S. law and policy in the 21 st century regarding coral reef protection in light of those ecosystems acknowledged tourism value. It concludes that the structure and procedures of the National Marine Sanctuary Act have proven ineffective in protecting U.S. coral reefs for purposes of promoting and sustaining coral reef tourism and suggests improvements for future coral reef and MPA policy. Attorneys Title Insurance Professor of Law, Florida State University College of Law, Tallahassee, FL. I first presented this paper at the Fifth International Coastal & Marine Tourism Congress, held September 11-14, 2007, in Auckland, New Zealand. I also gratefully acknowledge the Florida State University College of Law s financial support for both this paper and my participation in that Congress. Comments may be directed to the author at rcraig@law.fsu.edu. Craig Protecting Coral Reefs 1

2 INTRODUCTION Oceans provide significant economic benefits to the United States that have been increasing over time. In 1972, with the GNP of the United States some $ billion, the aggregated value of the ocean sector was $30.6 billion. 1 By 2000, the ocean economy contributed more than $117 billion to American prosperity and supported well over two million jobs. 2 Coastal tourism and recreation are a significant component of this value. In 2000, [r]oughly three-quarters of the jobs and half the economic value were produced by oceanrelated tourism and recreation Indeed, the employment and economic values for ocean tourism and recreation exceed those for agriculture. 4 Such economics should be relevant to U.S. ocean law and policy, as the two ocean commissions that recently reviewed such laws and policies acknowledged. In 2003, for example, the Pew Oceans Commission observed that [c]oastal tourism and recreation account for 85 percent of all tourism revenue, which is the second largest contributor to the U.S. gross domestic product. 5 Indeed, [i]n California alone, coastal tourism is valued at nearly 10 billion dollars annually, far exceeding the 6 billion dollars generated by port traffic and dwarfing the 550 million dollars generated by the state s fisheries and mariculture, or saltwater aquaculture The following year, the U.S. Commission on Ocean Policy concurred, emphasizing that [t]ourism and recreation was the largest sector in the ocean economy, providing approximately 1.6 million jobs and slightly less than $60 billion in Gross Domestic Product. 7 The U.S. Commission also noted that: Tourism and recreation constitute by far the fastest growing section of the ocean economy..., extending virtually everywhere along the coasts of the continental United States, southeast Alaska, Hawaii, and our island territories and commonwealths. This rapid growth will surely continue as incomes rise, more Americans retire, and leisure time expands. 8 1 Giulio Pontecorvo, et al., Contribution of the Ocean Sector to the United States Economy, 208 SCIENCE 1000, 1000 (May 30, 1980). 2 U.S. COMMISSION ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21 ST CENTURY 31 (Sept. 2004) [hereinafter USCOP REPORT]. 3 Id, 4 The Commission noted that ocean-related employment was almost 1 ½ times larger than agricultural employment in 2000, and total economic output was 2 ½ times larger than that of the farm sector. Id. Because tourism and industry provides three-quarters of the ocean-related jobs, that sector supplied about times the number of agricultural jobs. Moreover, because ocean-related tourism and recreation supplied half of the ocean s GDP value, its total economic output was about times the economic output of agriculture. 5 PEW OCEANS COMMISSION, AMERICA S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE: A REPORT TO THE NATION 49 (May 2003) [hereinafter POC REPORT]. 6 Id. at 49, 51 (citation omitted). 7 8 USCOP REPORT, supra note 2, at 31, fig Id. at 35. Craig Protecting Coral Reefs 2

3 In contrast, commercial and ornamental fishing combined are worth $31 billion to the United States each year 9 a significant number, to be sure, but still only about half the value of tourism and recreation. Of course, legal and policy response to the value of tourism and recreation are complicated by the fact that recreational fishing accounts for $20 billion in annual economic value, 10 some of which bleeds into general tourism revenues such as hotel stays and tourismbased restaurant trade. Thus, not all tourism value can be attributed to non-extractive tourism uses such as diving. Instead, as the Pew Oceans Commission observed, Fishing-related activities grease the engine of coastal tourism. Recent estimates indicate more than 17 million marine recreational fishers spend approximately 25 billion dollars per year on fishing-related activities and products.... Recreational fishing is important to the economies of California and the South Atlantic and Gulf Coast regions, particularly Florida. 11 Moreover, as the U.S. Commission noted, evaluating the role of recreational fishing in ocean stewardship generally is complicated: the National Marine Fisheries Service s Ethical Angler program promotes a voluntary stewardship code and catch-and-release programs, but saltwater anglers can contribute significantly to the overall mortality of certain stocks. 12 Nevertheless, even if recreational fishing is sequestered into its own category, nonextractive ocean-related tourism and recreation still provide approximately $38.5 billion in annual economic value. Thus, the overall point remains valid: in terms of sheer economic value, tourism and non-fishing recreation interests deserve consideration in the setting of U.S. ocean law and policy at least equal to that of the commercial and recreational fishing industries. The point becomes even more acute when the focus narrows to the United States coral reef ecosystems. Coral reefs are some of the most valuable ecosystems on the planet, provid[ing] ecosystem goods and services worth more than $375 billion to the global economy each year. 13 Many of these benefits derive from tourism. 14 In the United States, and not including the Northwestern Hawaiian Islands, there are about 7607 square miles of coral reefs off the coasts of Hawaii, Florida, Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana 9 Id. at Id. at POC REPORT, supra note 5, at USCOP REPORT, supra note 2. at J.M. Pandolfi, et al., Are U.S. Coral Reefs on the Slippery Slope to Slime?, 307 SCIENCE 1725, 1725 (March 18, 2005); see also USCOP REPORT, supra note 2, at 321; CORAL REEF TASK FORCE, THE NATIONAL ACTION PLAN TO CONSERVE CORAL REEFS 1 (March 2, 2000) [hereinafter 2000 CORAL NATIONAL ACTION PLAN]. 14 Richard Stone, A World Without Corals?, 316 SCIENCE 678, 678, 680 (May 4, 2007). Craig Protecting Coral Reefs 3

4 Islands. 15 Over 90 percent of these reefs are found in the United States Western Pacific holdings, 16 but most tourism occurs in Hawaii, Florida, and the U.S. Virgin Islands. These reefs provide great tourism value. U.S. reefs are a major destination for snorkelers, scuba divers, recreational fishers, boaters, and sun seekers. Diving tours, fishing trips, hotels, restaurants, and other businesses based near reefs provide millions of jobs and support many regional economies in the U.S., contributing billions of dollars in tourism-dependent revenue annually. 17 In 2002, the National Oceanic and Atmospheric Administration (NOAA) calculated that annually 45 million visitors come to seaside and live-aboard accommodations to dive, fish, and otherwise enjoy U.S. coral reefs, generating an estimated $17.5 billion annually in local income and sales for U.S. States, Commonwealths, and Territories. An additional 113,000 tourists visit the Freely Associated States, spending over $84.8 million annually. 18 In addition, [r]ecent data show over 90 million U.S. residents age 16 or older frequent coral reefs for some form of recreation. 19 In 2007, NOAA more specifically reported over $300 million in annual tourism-related economic benefit in the Main Hawaiian Islands 20 and $4.4 billion in local sales, almost $2 billion in local income, and 71,300 full- and part-time jobs in southern Florida. 21 Even in American Samoa, where tourism is limited, coral reefs provide approximately $5 million in annual economic value. 22 Of course, coral reefs are also critical to U.S. fishing interests. Over 50% of all federally managed fisheries depend on coral reefs for part of their life cycle. 23 Nevertheless, compared to coral reef tourism, coral reef-related fishing provides less economic value to the United States by an order of magnitude, generating income and other benefits in the hundreds of millions of dollars instead of, for coral reef tourism, the billions. For example, in 2000, [t]he 15 D.D. TURGEON, ET AL., NOAA, THE STATE OF CORAL REEF ECOSYSTEMS OF THE UNITED STATES AND PACIFIC FREELY ASSOCIATED STATES 1 (July 2002). See also 2000 CORAL NATIONAL ACTION PLAN, supra note 13, at 1 (estimating the total, exclusive of the Northwestern Hawaiian Islands, to be 17,000 square kilometers) CORAL NATIONAL ACTION PLAN, supra note 13, at Id. at TURGEON, supra note 15, at Id. at 35 (citations omitted). 20 PUGLISE, K.A., & R. KELTY, EDS., NOAA, NOAA CORAL REEF ECOSYSTEM RESEARCH PLAN FOR FISCAL YEARS 2007 TO 2011, at 1 (Jan. 2007) [hereinafter 2007 CORAL RESEARCH PLAN]. The U.S. Commission on Ocean Policy offered a slightly higher value for Hawaii s coral reefs, noting that in Hawaii, coral reefs are a major source of recreational benefits, generating an estimated $360 million per year. USCOP REPORT, supra note 2, at 35. See also H.P. CESAR, ET AL., ECONOMIC VALUATION OF THE CORAL REEFS OF HAWAII: FINAL REPORT (FY ) (2002) (calculating the $360 million per year figure) CORAL RESEARCH PLAN, supra note 20, at 1. Data for Florida vary considerably, however. For example, the U.S. Commission on Ocean Policy reported in 2004 that [i]n 2001, coral reefs in the Florida Keys alone supported $105 million in income and more than 8,000 jobs. USCOP REPORT, supra note 2, at In contrast, in 2005, Pandolfi et. al reported in Science, relying on 1998 calculations, that [a]nnual revenues from reef tourism are $1.6 billion, but the economic future of the Keys is gloomy owing to accelerating ecological degradation. Pandolfi, supra note 13, at Most recently, Richard Dodge, executive director of the National Coral Reef Institute, reportedly stated that [r]eef related activities generate more than $4 billion for the economy of southeast Florida alone. Brian Skoloff, Florida Officials Try to Shield Coral Reefs, WRAL.com News, (June 15, 2007). It seems reasonable, therefore, to assert that coral reefs generate tourism benefits worth significantly more than $1 billion annually to Florida CORAL RESEARCH PLAN, supra note 20, at CORAL NATIONAL ACTION PLAN, supra note 13, at 2. Craig Protecting Coral Reefs 4

5 annual dockside value of commercial U.S. fisheries from coral reefs [was] over $100 million, while [t]he annual value of reef-dependent recreational fisheries probably exceeds $100 million per year. 24 In 2002, NOAA calculate[d] that U.S. commercial reef fisheries today are worth over $137.1 million to fishermen. 25 The relative values of reef tourism and reef fishing vary by location, but in both Hawaii and California, tourism values exceed fishing values by a significant margin. In a 2003 report, the Hawaii Coral Reef Initiative concluded that: Hawaii s coastal reefs generate almost $364 million in added value. Added value is the net business revenues (income minus costs) that are directly and indirectly attributable to resident and tourist activities on Hawaii s reefs. About 84% of this added value ($304 million) is generated from snorkeling and diving and emerges from $700-$800 million in gross sales per year. 26 Added value from property generates another $40 million each year ; in sharp contrast to both snorkeling and diving and property values, [t]he added value for nearshore fisheries within the main Hawaiian Islands coastal reefs is about $2.5 million. 27 As the Initiative thus emphasized, [o]ver two generations, reefs surrounding the main Hawaiian Islands will have contributed over $18 billion to the economy, 28 mostly as a result of tourists who want to immerse themselves in healthy coral reef ecosystems. 29 The value of Florida coral reef ecosystems derives from more mixed human uses. As noted, recreational fishing is an important industry in Florida. However, [t]he reef tract of the Florida Keys is the largest coral reef within the continental United States and is the third largest coral reef on the planet, 30 and [t]he Florida Keys coral reefs are the number one dive destination in the world. Four million tourists visit the Florida Keys contributing $1.2 billion to tourism-related services every year. 31 In contrast, as of 1999, the annual dockside value of reef-dependent fisheries [in Florida] is estimated at $48.4 million. 32 Thus, protection of its coral reefs for tourism, even if such protection restricts fishing, is in the United States economic best interests. This article examines the legal vehicles that currently exist in the United States for protecting U.S. coral reefs and suggests how they might be improved. Specifically, after introducing the concepts of marine protected areas (MPAs) and marine reserves, Part I surveys the existing federal statutes that allow for the creation of these Id. TURGEON, supra note 15, at 2. HAWAII CORAL REEF INITIATIVE, THE FIRST FOUR YEARS: HAWAII CORAL REEF INITIATIVE RESEARCH PROGRAM , at 23 (Dec. 2003) (emphasis added). 27 Id. 28 Id. 29 See POC REPORT, supra note 5, at 15 (emphasizing the importance of coral reef ecosystems to tourism in Hawaii). 30 Id. at Office of Wetlands, Oceans, and Watersheds, U.S. EPA, Habitat Protection: Coral Reef Initiatives, (last updated June 21, 2006). 32 NOAA, Tortugas 2000: Protecting Florida s Coral Reefs (Oct. 29, 1999), available at Craig Protecting Coral Reefs 5

6 protections and the states and territories efforts to create coral reef MPAs and marine reserves in their waters. Part II, in turn, discusses the problem of legal priority in U.S. law, concluding that, despite scientific and policy recognition for the importance of coral reef ecosystems and their associated tourism values, American law still favors fishing over ecosystem protection. Finally, this article concludes that, in concert with the recommendations of the Pew Oceans Commission and U.S. Commission on Ocean Policy, Congress should: (1) clearly prioritize the creation and expansion of coral reef ecosystem no-take marine reserves; and (2) streamline the federal law processes for creating such marine reserves by increasing the role of direct presidential and/or congressional designation. A. Introduction I. PROTECTING CORAL REEFS IN THE UNITED STATES Coral reefs are some of the most biologically diverse ecosystems, second only to tropical rainforests. 33 This biodiversity the infinite variety of color and form makes healthy coral reef ecosystems attractive to tourists. This biodiversity also makes reefs productive fishing grounds, but overfishing often renders fishing and tourism competing uses of coral reef ecosystems. 34 In 2002, a five-year survey of over 1,100 coral reefs worldwide concluded that overfishing has affected 95 percent of those reefs. 35 That same year, with respect to United States coral reefs, NOAA noted that, [a]ccording to coral reef managers, the greatest human-related impacts on the broadest scale are over-harvesting of coral reef resources and fishing-associated habitat destruction. 36 Overfishing threatens Florida, Puerto Rico, the USVI, the Main Hawaiian Islands, American Samoa, and to a lesser degree reefs around other populated islands. In the South Atlantic, Gulf of Mexico, and Caribbean, NOAA identified 23 reef fish as overfished and concluded there was too little data to determine the status of another 232 species. As a result, four species of Western Atlantic grouper have been added to the list of candidate species under the Endangered Species Act. 37 The aquarium trade also stresses these coral reef ecosystems, because [t]he United States is the largest importer of ornamental coral reef species, responsible for around 70-95% of the global trade in coral and live rock and nearly half of the total worldwide trade in marine aquarium 33 Stone, supra note 14, at Pandolfi, supra note 13, at 1725; Robin Kundis Craig, Taking Steps Toward Marine Wilderness Protection? Fishing and Coral Reef Marine Reserves in Florida and Hawaii, 34:2 MCGEORGE LAW REVIEW 155, (Winter 2003) [hereinafter Craig 2003]; Jeremy B.C. Jackson, et al., Historical Overfishing and the Recent Collapse of Coastal Ecosystems, 293 SCIENCE 629, (July 27, 2001); CALLUM M. ROBERTS & JULIE P. HAWKINS, FULLY PROTECTED MARINE RESERVES: A GUIDE 9-12 (2000). 35 A. Bridges, World s Coral Reefs in Serious Decline: Overfishing Worsens Situation, (2002). 36 TURGEON, supra note 15, at Id. (reference omitted). Craig Protecting Coral Reefs 6

7 fishes. Most of the ornamental fish and invertebrates originating from U.S. waters come from Hawai i and Florida, with smaller numbers originating in Puerto Rico, the USVI, and Guam. 38 Given this conflict with fishing, ensuring the continued health of a U.S. coral reef ecosystem, and hence the health of the tourism industry that depends upon it, requires legal protections. 39 Such legal protection is especially necessary because the reefs that most tourists visit, those off the coasts of the Main Hawaiian Islands and Florida, are also significantly degraded. 40 Ironically, however, the legal solution for protection and promoting the tourism value of coral reefs marine protected areas (MPAs) and marine reserves 41 should also prove prove beneficial to the nation s coral reef-based fishing industries. MPAs are location-based legal protections for marine ecosystems the ocean equivalent of terrestrial national and state parks. 42 The most protective MPAs are marine reserves. Marine reserves generally prohibit all extractive uses of the marine ecosystem, including fishing. 43 Some marine reserves prohibit all access except for scientific research, but most tourism-related marine reserves allow non-extractive recreational uses such as snorkeling, diving, and boating. 44 In the United States, the value of MPAs and especially marine reserves to coral reef tourism is obvious. For example, residents of the U.S. Virgin Islands have initiated a Reef Ranger Project to protect and restore the islands coral reefs. 45 In addition, the territory s Department of Tourism touts the protected areas of Buck Island National Reef Monument, the Virgin Islands National Park, and Cinnamon Bay National Park. 46 Similarly, in response to increased take for the aquarium trade, Hawaii, Florida, the U.S. Virgin Islands, Puerto Rico, and Guam responded by creating new MPAs, marine reserves (no-take zones) and landmark legal settlements Id. at Pandolfi, supra note 13, at Id. at NATIONAL CORAL ACTION PLAN, supra note 13, at v (emphasizing that the U.S. should reduce the adverse effects of human activities on coral reefs by creating an expanded and strengthened network of federal, state, and territorial Marine Protected Areas and reducing the adverse impacts of extractive uses ). 42 TURGEON, supra note 15, at 4 n.9 (defining an MPA in accord with President Clinton s Marine Protected Areas Executive Order (Executive Order No ) to be an area of the marine environment that has been reserved by Federal, State, Territorial, Tribal, or Local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein ). 43 ROBERTS & HAWKINS, supra note 34, at TURGEON, supra note 15, at 4 n.9 (noting that in no-take zones or marine reserves, resource extraction has been prohibited to protect biodiversity and/or to enhance certain fish stocks ). 45 United States Virgin Islands Department of Tourism, Nature & Wildlife, (last visited May 27, 2007). 46 United States Virgin Islands Department of Tourism, Buck Island, (last visited May 27, 2007); United States Virgin Islands Department of Tourism, Virgin Islands National Park. (last visited May 27, 2007); United States Virgin Islands Department of Tourism, Cinnamon Bay. (last visited May 27, 2007). 47 TURGEON, supra note 15, at 4. Craig Protecting Coral Reefs 7

8 Nevertheless, in 2002, NOAA reported that, for most U.S. coral reef ecosystems, notake protection is only 5% or less of the total reef ecosystem, despite a national goal of protecting at least 20 percent of U.S. coral reefs by In 2005, in Science, eleven scientists called for the [i]mmediate increase of cumulative no-take areas of all U.S. reefs to >30% and the immediate reduction of fishing efforts in adjacent areas in order to improve the status of U.S. coral reefs. 49 These scientists argued that increased additional reserves were necessary, in concert with more comprehensive protections for coral reefs generally, because the scale of coral reef management with mechanisms such as protected areas has been too small and piecemeal ; [r]eefs must be managed as entire ecosystems ; restoring food webs and controlling eutrophication provides a first line of defense against climate change ; and [s]topping overfishing will require integrated systems of no-take areas and quotas to restore key functional groups. 50 MPAs and marine reserves should be a win-win solution for both the tourism and fishing industries. Indeed, as a result of overfishing and the collapse of many marine fish stocks, [t]he economic status of U.S. commercial marine fisheries is declining.... Increasing annual catches to long-term sustaining levels could add at least $1.3 billion to the U.S. economy.... Restoring marine ecosystems and fish populations to a status capable of supporting higher but sustainable yields will require an era of transition en route to a more sustainable future. 51 Research has demonstrated that MPAs and marine reserves that are scientifically chosen to protect important fish habitats, such as breeding grounds or nurseries, can be quite effective in increasing both the numbers and size of targeted species of fish. 52 With regard to coral reefs, efforts to limit fishing and human activity have paid dividends in healthier reefs and revived local fisheries. 53 Nevertheless, establishing coral reef MPAs and especially no-take marine reserves remains a highly contested process in the United States, largely because of fishing. Both the commercial and the recreational fishing industries are active politically, and in general they have opposed new coral reef marine reserves. For example, as I have explored in depth elsewhere, conflicts with fishers both hampered and finally limited the establishment of marine reserves in the Florida Keys. 54 Even more indefensibly, a handful of fishers stalled full protection for the Northwestern Hawaiian Islands coral reefs for half a decade Id.at Pandolfi, supra note 13, at Id. at 1725, PEW OCEANS COMMISSION, SOCIOECONOMIC PERSPECTIVES ON MARINE FISHERIES 1 (2003). 52 POC REPORT, supra note 5, at 34; Craig 2003, supra note 34, at ; Robin Kundis Craig, Taking the Long View of Ocean Ecosystems: Historical Science, Marine Restoration, and the Oceans Act of 2000, 29:4 ECOLOGY LAW QUARTERLY 649, (2002) [hereinafter Craig 2002]; ROBERTS & HAWKINS, supra note 34, at Stone, supra note 14, at Craig 2003, supra note 34, at Id. at Craig Protecting Coral Reefs 8

9 Despite these conflicts, the policies and laws underlying coral reef protection in the United States remain relatively unexamined, despite the fact that the lack of clear legal priority and a plethora of statutory mandates sometimes conflicting inhibit full promotion of coral reef tourism. This patchwork of legal authority also divides management of U.S. coral reefs among several federal agencies and the state, territorial, and commonwealth government agencies in Florida, Puerto Rico, the U.S. Virgin Islands, Hawaii, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. 56 Nevertheless, in dissecting legal structure and policy with an eye to improving protections for U.S. coral reefs and their associated tourism values, federal law provides a useful starting point. Federal law provides several vehicles for and approaches to creating MPAs and marine reserves, and the past implementation of these vehicles suggests some improvements for the future. B. MPA Creation through Federal Agency Process 1. The National Marine Sanctuaries Act Title III of the Marine Protection, Research and Sanctuaries Act of 1972, 57 known as the National Marine Sanctuaries Act, allows NOAA to designate any discrete area of the marine environment as a national marine sanctuary if NOAA finds that: (1) the area is of special national significance; (2) the area needs protection; and (3) the area is manageable. 58 Once designation is final, no one can use or remove sanctuary resources except in accordance with federal law. 59 Thus, the 13 national marine sanctuaries that currently exist 60 are MPAs. However, despite the fact that NOAA can overrule the regional Fishery Management Councils regarding fishing regulations within National Marine Sanctuaries, 61 very few national marine sanctuaries have included marine reserves because the National Marine Sanctuaries Act emphatically encourages multiple uses of these areas. 62 Nevertheless, some marine reserve experimentation is beginning. The Dry Tortugas Ecological Reserve in the Florida Keys National Marine Sanctuary, established to protect coral reefs, is probably the most famous example. 63 Even so, it is questionable whether the National Marine Sanctuaries Act provides the most effective legal mechanism to protect U.S. coral reef ecosystems. The designation process is long and arduous, 64 and both of the two most recent coral reef sanctuary proposals the Florida Keys National Marine Sanctuary and what was supposed to become the Northwestern Hawaiian Islands (NWHI) National Marine Sanctuary failed to complete the Act s processes, largely CORAL RESEARCH PLAN, supra note 20, at 3, U.S.C a 16 U.S.C. 1433(a). 16 U.S.C. 1436(1), (2). NOAA, National Marine Sanctuaries: Welcome, (last revised June 18, 2007). 16 U.S.C. 1434(a)(5). 16 U.S.C. 1433(b). Craig 2003, supra note 34, at U.S.C. 1434, Craig Protecting Coral Reefs 9

10 because of conflicts with fishers. 65 Congress eventually created the Florida Keys National Marine Sanctuary through special legislation in 1990, 66 while President Bush created the NWHI as a Marine National Monument under the Antiquities Act The Magnuson-Stevens Fishery Conservation and Management Act The Magnuson-Stevens Fishery Conservation and Management Act 68 establishes [a] national program for the conservation and management of the fisheries resources in the United States in order to prevent overfishing, to rebuild overfished fish stocks, to insure conservation, and to realize the full potential of the Nation s fishery resources Moreover, when Congress amended the Magnuson-Stevens Act through the 1996 Sustainable Fisheries Act, 70 it incorporated both a precautionary approach to and a sustainable development goal for the country s fisheries management. 71 Pursuant to the 1996 amendments, the regional Fisheries Management Councils have begun to experiment with an ecosystem approach to fisheries management, including the use of zoning and MPAs. With respect to coral ecosystems, for example, on June 28, 2006, NOAA used its authority under the Magnuson-Stevens Act to amend five fishery management plans for Alaska fisheries to prohibit trawling in 370,000 square miles of Alaska waters. 72 This regulation effectively created two MPAs a 320,000-square-mile area in the Aleutian Islands and a 50,000- square-mile area in the Gulf of Alaska to protect Alaska s cold-water coral gardens, one of the slowest growing marine ecosystems in the world. 73 Nevertheless, the emphasis of the Magnuson-Stevens Act is on the allowance of fishing. As a result, no-take marine reserves generated pursuant to its authority remain rare. Moreover, [t]he regional fishery management councils can restrict removal of species within their control, but they cannot set aside an area as a closure for all species The Endangered Species Act 65 Id. at Florida Keys National Marine Sanctuary Protection Act, Pub. L. No , 104 Stat. 3089, codified at 16 U.S.C George W. Bush, Proclamation No. 8031: Establishment of the Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443 (2006) U.S.C U.S.C. 1801(a)(6). 70 Sustainable Fisheries Act (SFA), Pub. L. No , 110 Stat (1996). 71 Id See also Robin Kundis Craig, Oceans and Estuaries, in JOHN C. DERNBACH, ED., STUMBLING TOWARD SUSTAINABILITY (2002) (explaining the effect of the 1996 amendments). 72 National Oceanic & Atmospheric Administration, Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish, Crab, Salmon, and Scallop Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska, 71 Fed. Reg. 36,694, 36, (2006) (revising several fishery management plans to protect the corals as Essential Fish Habitat and Habitat Areas of Particular Concern). 73 NOAA Fisheries Service Habitat Conservation, Ecosystem Assessment Division, Cold-Water Corals or Deep Sea Corals, 74 STEPHEN C. PALUMBI, PEW OCEAN COMMISSION, MARINE RESERVES: A TOOL FOR ECOSYSTEM MANAGEMENT AND CONSERVATION 5 (2003). Craig Protecting Coral Reefs 10

11 The federal Endangered Species Act (ESA) seeks to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species The U.S. Fish & Wildlife Service and NOAA list species for protection under the Act if a review of five factors, using the best scientific and commercial data available, reveals that those species are threatened with extinction (endangered) or likely to become threatened with extinction (threatened). 76 At the same time, the listing agency is supposed to designate critical habitat for the species habitat that is essential to the species conservation and recovery. 77 Listing under the Act generally entitles a species to two sets of protections: requirements that federal agencies conserve the species and ensure that their actions do not jeopardize the continued existence of the species, 78 and general prohibitions on the take of or commercial trade in that species. 79 Since 1973, the ESA has been used far more often to protect terrestrial and fresh water species than marine species. However, on May 9, 2006, NOAA listed two species of coral elkhorn coral (Acropora palmata) and staghorn coral (Acropora cervicornis) as threatened species under the Act. 80 However, because NOAA considered the Acropora species to be threatened rather than endangered, NOAA could limit the protections available to the corals. The Endangered Species Act s take prohibitions apply directly only to species listed as endangered. 81 With respect to threatened species, the Act only makes it illegal for any person to violate any regulation pertaining... to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by [the relevant agency] pursuant to authority provided by this chapter. 82 Within the Act s listing provisions, [w]henever any species is listed as a threatened species... [the relevant agency] shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. 83 Thus, the exact protections that threatened species receive vis-à-vis non-federal actors depend on the listing agency s decisionmaking, not the Act itself. 84 NOAA declared that the ESA s general prohibitions on take and commercial trade did not apply to the corals, but it did not promulgate regulations to substitute special protections for the two species. 85 Nor did NOAA establish critical habitat for the two coral species, concluding that [t]he designation of critical habitat is not determinable at this time due to the extremely U.S.C. 1531(b). 16 U.S.C. 1532(6), (20), 1533(a), (b). 16 U.S.C. 1533(a). 16 U.S.C U.S.C. 1538(a). National Oceanic & Atmospheric Administration, Endangered and Threatened Species: Final Listing Determination for Elkhorn Coral and Staghorn Coral, 71 Fed. Reg. 26,852 (2006) U.S.C. 1538(a)(1) U.S.C. 1538(a)(1)(G) U.S.C. 1533(d). 84 Madeline June Kass, Threatened Extinction of Plan Vanilla 4(d) Rules, 16 NATURAL RESOURCES & ENVT. 78, 78-79, 80 (Fall 2001). 85 National Oceanic & Atmospheric Administration, Endangered and Threatened Species: Final Listing Determination for Elkhorn Coral and Staghorn Coral, 71 Fed. Reg. 26,852, 26, (2006). Craig Protecting Coral Reefs 11

12 complex biological and physical requirements of these two Acroporid species. 86 As a result, the only protections that the Acropora corals currently receive as a result of the ESA are the requirements that apply to federal agencies. 87 Actions by individuals, local governments, and state governments with respect to the corals cannot violate the Act. Given these limitations, and in Florida in particular, the ESA listing of the Acropora corals gives little additional protection to the Florida Keys coral reef ecosystem not already accomplished through the establishment of the Florida Keys National Marine Sanctuary. More generally, despite its nominal goal to protect ecosystems, the ESA has rarely embraced a broader ecosystem focus. 88 C. Direct Congressional Action: Specific Legislation Despite the National Marine Sanctuaries Act, Congress remains free to establish federal coral reef MPAs and marine reserves through direct legislation. The Florida Keys National Marine Sanctuary, which Congress established in 1990 through the Florida Keys National Marine Sanctuary and Protection Act, 89 is the most prominent example of such direct congressional protection. In that Act, Congress prohibited tanker vessel traffic and mineral, oil, and gas exploration and development within the Sanctuary. However, it left fishing regulation to NOAA, while requiring NOAA to consider temporal and geographical zoning in the Sanctuary s management plan to ensure protection of sanctuary resources. 90 In drafting the management plan for the Florida Keys National Marine Sanctuary, NOAA gave establishment of a marine zoning plan the highest priority the first such extensive use of marine zoning in a national marine sanctuary. 91 The final management plan for the Sanctuary, adopted in 1997, uses both marine zoning and 23 marine reserves to protect sanctuary resources. 92 In addition, on July 1, 2001, regulations became effective that established the Tortugas Ecological Reserve, consisting of a 90-square-nautical-mile reserve in the north and a 60-square-nautical-mile reserve in the south. 93 However, largely as a result of conflicts with 86 Id. at 26, Robin Kundis Craig, Water Flow, Water Quality, and Threatened Corals in Florida: Are the Everglades and the Florida Keys Now Competing Ecosystems?, 22 NATURAL RESOURCES & ENVT. (forthcoming Fall 2007). 88 ROBERT W. ADLER, RESTORING COLORADO RIVER ECOSYSTEMS: A TROUBLED SENSE OF IMMENSITY 113, (2007). 89 Florida Keys National Marine Sanctuary Protection Act, Pub. L. No , 104 Stat (1990), codified at 16 U.S.C Id. 7(a)(2). 91 NOAA, FLORIDA KEYS NATIONAL MARINE SANCTUARY FINAL MANAGEMENT PLAN/ENVIRONMENTAL IMPACT STATEMENT, Vol. I, at 257 (1996). 92 National Oceanic & Atmospheric Administration, Florida Keys National Marine Sanctuary Final Regulations, 62 Fed. Reg (1997); National Oceanic & Atmospheric Administration, Florida Keys National Marine Sanctuary Final Regulations, 62 Fed. Reg. 32,154 (1997). 93 NOAA, Florida Keys National Marine Sanctuary: Tortugas Ecological Reserve Effective July 1, 2001, see also NOAA, Florida Keys National Marine Sanctuary Regulations, 65 Fed. Reg. 31,634 (May 18, 2000) (establishing the Tortugas Ecological Reserve). Craig Protecting Coral Reefs 12

13 fishers, 94 only 6% of the Sanctuary is zoned no take, and these zones are not strategically located.... Florida s reefs are well over halfway toward ecological extinction D. Blending Presidential and Congressional Action: The Spur of Executive Orders U.S. Presidents have long protected coral reefs through the use of executive orders. Executive orders are a very weak form of law. Essentially, they are directives from the President to the federal executive agencies, and subsequent Presidents are free to eliminate or change these orders at will. 96 However, executive orders can inspire the U.S. Congress to enact more permanent legal protections. The Northwestern Hawaiian Islands (NWHI) present one example of a coral reef ecosystem that has benefited repeatedly from this interplay between the President and Congress. In 1909, President Theodore Roosevelt reserved all of the NWHI except Midway for the use of the Department of Agriculture as a preserve and breeding ground for native birds. 97 Building on this order, in 1940 President Franklin D. Roosevelt renamed the Reserve as the Hawaiian Islands National Wildlife Refuge. 98 The designation of the NWHI Coral Reef Ecosystem Reserve came about through a blending of congressional and presidential action. In November 2000, Congress authorized President Clinton, in consultation with the Governor of Hawaii, to designate any Northwestern Hawaiian Islands coral reef or coral reef ecosystem as a coral reef reserve to be managed by the Secretary of Commerce President Clinton exercised this authority in December 2000, 100 establishing the NWHI Coral Reef Ecosystem Reserve, which set aside an area that protected 70% of U.S. coral reefs. 101 The executive order also proposed the use of marine zoning, including the establishment of marine reserves ( Reserve Preservation Areas ). 102 Finally, the order capped all fishing. 103 However, Congress did not permanently eliminate other sources of legal authority that could apply in the NWHI, such as the Magnuson-Stevens Act. In addition, Congress demanded adequate review and comment before the Reserve Preservation Areas could become permanent. 104 After seven public hearings on the executive order s proposal, however, President 94 Craig 2003, supra note 34, at Pandolfi, supra note 13, at Robin Kundis Craig, The Coral Reef Task Force: Protecting the Environment Through Executive Order, 30 Environmental L. Rep 10,343, 10,356 (May 2000) [hereinafter Craig 2000]. 97 Theodore Roosevelt, Executive Order No (1909). 98 NOAA, U.S. FISH & WILDLIFE SERVICE, & STATE OF HAWAII, NORTHWESTERN HAWAIIAN ISLANDS MARINE NATIONAL MONUMENT: A CITIZEN S GUIDE 12 (Sept. 2006). 99 National Marine Sanctuary Amendments Act of 2000, Pub. L. No , 114 Stat (2000). 100 William J. Clinton, Executive Order No. 13,178: Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, 65 Fed. Reg. 76,903 (2000). 101 Id. at 76,904, Id. at 76,908, Id. at 76,907. ß Pub. L. No , 144(f)(3), 114 Stat. 2763, 2763A-249 (Dec. 21, 2000). Craig Protecting Coral Reefs 13

14 Clinton was able to issue the final NWHI Coral Reef Ecosystem Reserve Executive Order on January 18, 2001, 105 three days before he left office. E. Direct Presidential Action: The Antiquities Act The Antiquities Act is very short. Under it, [t]he President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments. 106 While use of the Antiquities Act has had a predominantly terrestrial focus, Presidents have also repeatedly used it to create marine-related national monuments that function as MPAs, including to protect coral reefs. For example, President Kennedy created the Buck Island Reef National Monument in the U.S. Virgin Islands through the Antiquities Act. 107 Most recently, on June 15, 2006, President Bush finally resolved the procedural nightmare encountered in protecting the NWHI by using the Antiquities Act to create the NWHI Marine National Monument, 108 since renamed the Papahānaumokuākea Marine National Monument. 109 This monument protects almost 140,000 square nautical miles of ocean around the long chain of islands stretching north and west of Kauai. 110 The monument is now the largest MPA in the world, protecting the largest and arguably most pristine remote coral reef ecosystem in the world. President Bush s proclamation establishing the monument is very protective of the coral reef ecosystem. All commercial fishing is to be phased out over five years. 111 Moreover, even recreational snorkeling and diving are prohibited in the Special Preservation Areas and Midway Atoll Special Management Area. 112 Thus, effectively, most of the Papahānaumokuākea Marine National Monument is or will become a marine reserve, the largest such reserve on the planet. F. State MPA Authority and Coral Reef Protection Under U.S. law, coastal states and territories generally manage the first three geographical miles of ocean off their coasts 113 and hence have the ability to establish their own 105 William J. Clinton, Executive Order No. 13,196: Final Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, 66 Fed. Reg. 7,395 (2001). 106 Antiquities Act (Act of June 8, 1906), 34 Stat. 225, 2 (1906) (codified at 16 U.S.C. 431). 107 See William J. Clinton, Proclamation 7391: Boundary Enlargement of the Buck Island Reef National Monument, 66 Fed. Reg. 7335, 7335 (Jan. 17, 2001) (noting that Buck Island Reef National Monument was established on December 28, 1961 (Presidential Proclamation 3443) ). 108 George W. Bush, Proclamation No. 8031: Establishment of the Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443 (2006). 109 NOAA, Papahānaumokuākea Marine National Monument, (last updated May 15, 2007). 110 NOAA, Papahānaumokuākea Marine National Monument: About Us, (last revised June 8, 2007). 111 George W. Bush, Proclamation No. 8031: Establishment of the Northwestern Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443, 36, (2006). 112 Id. at 36, Submerged Lands Act of 1953, 43 U.S.C Craig Protecting Coral Reefs 14

15 MPAs. In February 2007, NOAA concluded that all seven of the United States jurisdictions that have abundant coral reef ecosystems within their state and territorial waters American Samoa, the Commonwealth of the Northern Mariana Islands, Florida, Guam, Hawaii, Puerto Rico, and the U.S. Virgin Islands have recognized that to successfully conserve coral reef ecosystems, ecologically important reef areas need to be identified and managed distinctively within the broader marine environment. As a result, each of these jurisdictions has formally acknowledged that marine protected areas (MPAs) are an important coral reef management tool and have taken measures to officially incorporate this tool into their local marine resource management regimes. 114 NOAA s report identified 207 MPAs in the seven coral reef jurisdictions. 115 Florida has established the most coral reef MPAs (82), 116 followed by Hawaii (39), 117 Puerto Rico (35), the U.S. Virgin Islands (24), 118 American Samoa (14), the Commonwealth of the Northern Mariana Islands (8), 119 and Guam (5). 120 Over three-quarters of these 207 MPAs are multiple use areas that allow some level of extractive activity throughout the entire site. The remaining 49 MPAs include no-take areas in which the harvesting of marine resources is prohibited. 121 Approximately 45 percent of the notake sites are located in the Atlantic-Caribbean region ; the rest are in the Pacific Ocean states and territories. 122 Hawaii has established the most no-take MPAs (12), followed by Florida and American Samoa (10 each), Puerto Rico and the U.S. Virgin Islands (6 each), the Commonwealth of the Northern Mariana Islands (4) and Guam (1). 123 State and territorial MPAs serve a variety of purposes. For example, over half of Guam s, American Samoa s, and Hawaii s coral reef MPAs focus on sustainable production 124 that is, they were established and managed to support the continued extraction of renewable living resources. 125 Such MPAs therefore suggest a strong interest in supporting continued fishing. In contrast, over 90 percent of Florida s and Puerto Rico s MPAs, about 70 percent of the U.S. Virgin Islands MPAs, but less than 40 percent of Hawaii s MPAs emphasize the reefs natural heritage values 126 that is, they were established and managed to sustain, conserve, restore, and understand the biodiversity, populations, communities, habitats, ecosystems, processes, and 114 DANA WUSINISH-MENDEZ & CARLEIGH TRAPPE, EDS., NOAA, REPORT ON THE STATUS OF MARINE PROTECTED AREAS IN CORAL REEF ECOSYSTEMS OF THE UNITED STATES, VOLUME I: MARINE PROTECTED AREAS MANAGED BY U.S. STATES, TERRITORIES, AND COMMONWEALTHS iii (2007) [hereinafter 2007 STATE CORAL MPA REPORT] Id. See PALUMBI, supra note 74, at 4 (mapping marine reserves in the Florida Keys). See id. at 3 (mapping marine reserves in Hawaii). See id. at 4 (mapping marine reserves in the U.S. Virgin Islands). See id. at 3 (mapping Pacific Island marine reserves) STATE CORAL MPA REPORT, supra note 114, at 4, fig. A. Id. at iii. Id. at 4. Id. at 5, fig. C. Id. at 6, fig. E STATE CORAL MPA REPORT, supra note 114, at 3. Id. at 6. fig. E. Craig Protecting Coral Reefs 15

16 services of an MPA or MPA zone. 127 These MPAs thus suggest a more tourism-based and/or science-based focus on coral reef ecosystem protection. The U.S. Virgin Islands and the Commonwealth of the Northern Mariana Islands have the greatest percentages of MPAs designated to protect cultural heritage values that is, MPAs established and managed to protect and understate submerged cultural resources 128 although both also have significant percentages of natural heritage sites. 129 Protection of stressed species can also suggest the biodiversity and tourism value of state MPAs and marine reserves. About 40 percent of the state coral reef MPAs protect fish spawning areas, while 80 percent protect habitat for endangered and threatened species. 130 However, these calculations do not include the Acropora corals, which were listed as federally threatened species after completion of the state MPA inventory; including those coral species would increase the number of sites with threatened or endangered species significantly. 131 II. THE PROBLEM OF LEGAL PRIORITY: PROTECTION OF FISHING VS. PROTECTION OF MARINE BIODIVERSITY AND ECOSYSTEMS A. Tourism vs. Fishing While the tourism value of the United States coral reef ecosystems is threatened by a number of stressors, 132 the most important source of political conflict over protecting coral reefs has been from fishing interests. 133 As researchers have noted more generally, [c]urrent fisheries practice effectively ignores the trade-offs to biodiversity and populations structure within ecosystems that result from high levels of extraction, 134 but the weight of evidence overwhelmingly indicates that the unintended consequences of fishing on marine ecosystems are severe, dramatic, and in some cases irreversible. 135 However, the social and economic realities of the fishing industry have hamstrung political and legal evolution in ocean policy, despite increasing evidence that MPAs and marine reserves can benefit both marine ecosystems and fisheries interests 136 : 127 Id. at Id. at Id. at 6, fig. E. 130 Id. at 7, fig. G STATE CORAL MPA REPORT, supra note 114, at CORAL RESEARCH PLAN, supra note 20, at 1; Pandolfi, supra note 13, at 1726, USCOP REPORT, supra note 2, at Craig 2003, supra note 34, at ; see also Pandolfi, supra note 13, at 1725 ( Overfishing of megafauna releases population control of smaller fishes and invertebrates, creating booms and busts. This in turn can lead to algal overgrowth, or overgrazing, and stress the coral architects, likely making them more vulnerable to other forms of stress. This linked sequence of events is remarkably consistent worldwide ); USCOP REPORT, supra note 2, at 322 ( Many scientists believe that excessive fishing pressure has been the primary threat to coral ecosystems for decades. ). 134 PAUL K. DAYTON, SIMON THURSH, & FELICIA C. COLEMAN, PEW OCEANS COMMISSION, ECOLOGICAL EFFECTS OF FISHING IN MARINE ECOSYSTEMS OF THE UNITED STATES ii (2003). 135 Id. at Id. at 34; see also PALUMBI, supra note 74, at (detailing the advantages of marine reserves to fishing as well as ecosystems). Craig Protecting Coral Reefs 16