The U.S. domestic resource laws are no less conflicting. The National Environmental Policy Act, Endangered Species Act, Marine Mammal Act and the Fisheries Conservation and Management Act (later to by known as the Magnuson Act and then the Magnuson-Stevens Act) were passed sequentially in a short period, about thirty years ago. For the North Pacific, the ocean area I know best, the FCMA has functioned effectively. Quota decisions are based upon the recommendations of fishery scientists, from the Federal government, State agencies, academia, and the Halibut Commission. In no case has a quota been established exceeding that recommended by the Scientific Committee of the North Pacific Council. For example, the composite Total Allowable Catch(TAC) for the Bering Sea is set, by agreement at 2,000,000 metric tons. The overfishing level is estimated at more than 4.8 million metric tons. Pollock, our most important fish has a TAC set at less than half its overfishing level- 1.4 million versus more than 3.5 million metric tons. Most fish stocks, especially the flatfish are also healthy.

While those of you who represent Japanese fishermen would likely disagree, most of the U.S. north Pacific fleet believe that the FCMA has worked well. Indeed, major issues remain, including over- capitalization, by-catch and the incredible competition between user groups, both in regards to gear type and the allocation of the inshore and offshore quotas.

These problems, however, are dwarfed by the interaction of FCMA and the MMPA, ESA, and NEPA. While the fish stocks, are generally healthy, many marine mammal populations have declined, particularly the northern or Steller sea lion. Considering 1975 as a bench mark the sea lion population has dropped from about 90,000 animals to fewer than 30,000 today. Theories abound for the cause of this decline including; (1) the regime shift in the North Pacific which began at about the same time as the sea lion decline, (2) the impacts of the trawl fisheries, by localized depletion of food, entanglement in gear or shooting (the sea lion competes with the fishermen for fish and damages nets), (3) disease (4) predation by killer whales or shark species, (5) that ocean changes caused the depression of oily, nutrient rich fish such as capelin and herring, (important food for the sea lion). Disease has been largely ruled out and regulations- supported by the fishermen- have minimized entanglement and shooting as important contributors to the decline. At this point there is no scientific proof of the cause or causes for declines, (declines sufficiently severe to list the Steller’s as an endangered species).

The interactions of the ESA, MMPA and NEPA are as complex as those of a coral reef ecosystem. You don’t have to understand the coral reef to appreciate its beauty- you don’t have to understand the complexities of the legal interactions of our above three laws to know that their application in the Steller problem creates extraordinary problems for the fishing fleets. These difficulties are particularly hard to accept when economic extinction is a threat to an industry that has been supportive of the regulations that govern their harvests. It is especially difficult to understand in that the population of pollock is about five times higher today than it was during the period that Steller’s were at their apparent peak .

Under the law, however, the government must take all prudent steps necessary to ensure Steller’s survival and recovery. Even though there is substantial question about the role of fishing as a cause of the sea lion decline, the ESA gives the benefit of the doubt to the endangered species. Virtually the only thing government can do- not being sure of the causes of decline- is to regulate the fleet. Thus it ordered the closure of the trawl fisheries in the Steller’s critical habitat. Such closures, if implemented would have catastrophic social and economic impacts on many Alaska communities. The forceful intervention of Senator Stevens of Alaska caused the Administration to delay the closures providing the opportunity for the North Pacific Fishery Management Council and the public to recommend changes to the proposed Federal action. At the same time research efforts were intensified to determine the causes for decline. In the meantime fishing continues, but the fishing community lives with an uncertain future, pending future government and possible legal activities.