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New Turf: Territorial User Rights Fisheries by Anthony Shiao

Posted by: | April 28, 2011 Comments Off on New Turf: Territorial User Rights Fisheries by Anthony Shiao |

Tragedy of the common is not novel to marine fisheries. People have always recognized the susceptibility of fisheries to overexploitation.[1] The current quota-based management regimes such as the individual transferrable quotas (ITQ) have achieved notable success, but they are not perfect.[2] While fishermen do not have incentives to catch as many fish as they can due to numerical limitation under quota-based management, they do have incentives to be more efficient. Fishermen may focus their efforts towards sites with high fish abundance in order to minimize time and efforts.[3] However, these areas of high abundance may also be critical breeding grounds for the species.[4] Prolong and concentrated fishing in specific sites can diminish the quality of those sites for such targeted species.

                The idea of territorial user rights fisheries (TURF) has been slowly emerging over the last 2 decades.[5] The concept is relatively straight-forward: usufructuary right to fish in a single area is given to a single entity, which can be an individual, a company, or a cooperative. Ideally, the government will divide a commercially valuable species into spatially distinct populations and hand the “ownership” of these populations to the hands of private entities. These private entities not only will have more incentives to provide what amounts to essentially their very own fish populations, but also the habitats associated with those respective populations.  When used in conjunction with numerical quota, TURF can protect the physical integrity of fishing grounds to a degree that the quota alone cannot.[6]

                The idea of using TURF in conjunction with quota seems promising, but actual implementation has not yet take flight in the United States. While semi-TURF systems have been implement for selective tuna fisheries, the U.S. has yet to see any wide-spread implementation of TURF.[7] There is little doubt that NMFS has the authority to implement TURF-based management through the various fishery councils. The nascent but growing field of the federal public trust doctrine strongly suggests that the federal government may divest fishing rights into exclusive hands of a few as long as such divestments 1) promote the public interest and 2) does not impair other related public rights.[8] The Magnuson-Stevens Act specific allows for the establishment of “limited entry programs” so long as NMFS takes into account 1) present participation in fishery, 2) historical fishing practice in and dependence on a fishery, 3) the economics of a fishery, 4) the cultural and social framework relevant to the fishery, and 5) “other relevant considerations.”[9] The difficulties of establishing TURF in the U.S. lie elsewhere. An important obstacle is arguably the interconnectedness of the various marine fish populations.

                Marine fish species in general disperse their young into the open oceans.[10] Even fish species with sedentary adult phase may completely disperse their recruits between populations. Owners of the species’ TURF zones may have little incentive to preserve the critical habitats of such species within their respective zones. After all, protection of these spawning areas will not provide any specific benefits to the individual owners. Put more bluntly, ownership of populations from species with high dispersal rate cannot be complete. Owning incomplete property rights essentially defeats the purpose of adopting a TURF regime. For species with high dispersal rate, implementation of a TURF management scheme may be outright unnecessary. The crux of the issue, then, is to explore means by which our government can accurately identify populations that are susceptible to TURF-based management.

                In a recent study, two researchers from UCSB tackled the problem of calculating the yield of a potential TURF fishery based on the biological characteristic of specific fish species.[11] The study came to several interesting substantive conclusions.[12] More importantly, however, are the biometric equations that the study used to reach its conclusions. The study uses several obtainable biological criteria of fish species and calculates an expected yield density of a potential TURF fishery.[13] The biometric equations, if used correctly, can allow the staff of a fishery council to calculated the amount of expected yield a fishery can produce under a TURF regime based on the biological characteristic of a particular species. In other words, the government may be able to predict how suitable a particular marine fishery is to TURF-style management based on these biometric equations.

                It is important to bring new information such as the March 2011 study to the attention of government administrators. Good management theories can benefit the society only if they are actually integrated into the current government management regime. For new information regarding fisheries, such integration can be achieved through the annual Stock Assessment and Fishery Evaluation (SAFE) process.[14] Under the current NOAA regulation, each regional fishery management council must submit a SAFE report to the Secretary of Commerce each year.[15] The purpose of the SAFE report is, among others, to “summarize[ to the Secretary], on a periodic basis, the best available scientific information concerning the past, present, and possible future condition of the stocks, marine ecosystems, and fisheries being managed under Federal regulation.”[16]

                Fishery management councils often based the annual catch levels of its fisheries on the results of their annual SAFE reports.[17] The production process of SAFE always qualify as “major federal action.”[18] As such a the public at large is allowed to participate in the production process through commenting.[19] Once the responsible agency receives the comment, it becomes part of the agency record, and what the agencies do with such new information may in turn be reviewed under the “arbitrary and capricious” standard set forth in the Administrative Procedure Act.[20]

Ultimately, it will take some time before our government is able to construct a management scheme that regulate our fisheries in both an environmentally sustainable and economically sustainable manner. However, that day is getting closer, and it is important for NMFS and other responsible administrative agencies to stay informed on the latest development in relevant scientific fields.

[1] See Rod Fujita et al., Rationality or Chaos? Global Fisheries at the Crossroads, in Defying Ocean’s End: An Agenda for Action 139 (Linda K .Glover & Sylvia A. Earleeds., 2004). See also Seth Macinko, Public or Private?: United States Commercial Fsiheries Management and the Public Trust Doctrine, Reciprocal Challenges, 33 Nat. Resources J. 919, 922 (1993)

[2] See Cancino ,J. P., H. Uchida, and J. E. Wilen. 2007. TURFS and ITQS: collective v. individual decision making. Marine Resource Economics 22:391-406

[3]See Id; See also Copes, P. 1986. A critical review of the individual quota as a device in fisheries management. Land Economics 62:278-291

[4] See TURFS and ITQS, supra note 2, at pp.398-399

[5] See, e.g., Reiser Alison, Property Rights and Ecosystem Management in U.S. Fisheries: Contracting for the Commons?, 24 ECGLO 813 (1997); see also Lynch, Kevin J., Application of the Public Trust Doctrine to Modern Fishery Management Regimes, 15 NYUELJ 285 (2007); see also Wyman, Katrina M., The Property Rights Challenge in Marine Fisheries, 50 AZLR 511 (2008)

[6] See generally Property Rights Challenge, supra note 5

[7] See Applicatin of the Public Trust Doctrine, supra note 5

[8] Id (citing Illinois Central Rail Road Co. v. Illinois, 146 U.S. 387, 453 (1982))

[9] 16 U.S.C. § 1853(b)(6) (2010)

[10] See, e.g., Selkoe, K. A., S. D. Gaines, J. E. Caselle, and R. R. Warner. 2006. Current shift and kin aggregation explain genetic patchiness in fish recruits. Ecology 87:2006-3082

[11] White, C., C. Costello. 2011. Matching spatial property rights fisheries with scales of fish dispersal. Ecological Application 21:2011-350

[12] Id at pp.357-358

[13] Id at pp.352-354

[14] 50 C.F.R. § 600.315(e) (2010)

[15] Id at (e)(1)(i)

[16] Supra note 14 at (e)(1)

[17] See, e.g., Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Circ. 1992); see also, Ocean, Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005)

[18] See, e.g., Greenpeace, supra note 17; see also, 40 C.F.R. 1500 et.seq. (2010)

[19] Id

[20] 5 U.S.C. § 706(2)(F) (2010)

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