Steller Sea Lions: The Effects of Multi-Statute Administration on the Role of Science in Environmental Management

Abstract

I INTRODUCTION On July 13, 1999, January 25, 2000, and July 19, 2000, the Federal District Court of Western Washington held that the National Marine Fisheries Service (NMFS) failed to comply with its obligations under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) concerning two Alaskan groundfish fisheries (Alaskan Fisheries) and their interactions with the Steller sea lion (Steller). (2) These rulings were the latest and most politically charged events in the extensive administrative and judicial legal history surrounding the Stellers and the Alaskan Fisheries, stretching back to their initial comprehensive regulation in the late 1970's. During those two-plus decades a single federal agency, the NMFS, has held the numerous, changing, overlapping, and sometimes conflicting administrative responsibilities in both regulating the Alaskan Fisheries and protecting the Stellers. Over the same time period, Steller populations rapidly and steadily declined, and continue to decline today, (3) despite the application of the ESA, the NEPA, and the Marine Mammal Protection Act (MMPA) with their various provisions for environmental analysis and regulation for conservation using the best available science. This paper examines the effects of the diversity of the NMFS's statutory responsibilities on the use of science in protecting the Steller. This introductory section continues with descriptions of the Steller, the fish, and the Alaskan Fisheries. Section two details the legal history, statute by statute, of the Steller and the Alaskan Fisheries and then briefly summarizes important events and decisions in an integrated time line. Section three analyzes the role of science in the legal decisions surrounding the Stellers and hypothesizes some effects of multi-statutory management in this case-study. The final section offers a brief policy analysis of those possible effects. The Steller Sea Lion The Northern or Steller sea lion (Eumetopias jubatus) is the largest of the sea lions, measuring up to 11 feet long and weighing up to a ton. (4) Its closest living relatives include the fur seals and other seal lions, from which it diverged at least 3 million years ago. (5) Stellers look very similar to the familiar California sea lion, except are roughly twice the size and the male bulls have no head crest. (6) Stellers feed on a variety of prey items including fish and mollusks. (7) Groundfish including Walleye pollock and Atka mackerel represent a significant portion of their diet. (8) The Stellers are found in coastal areas along the Northern Pacific Rim, from Southern California to Northern Japan, with the center of their distribution in the Gulf of Alaska and Aleutian Islands. (9) Along their range, Stellers divide into two reasonably distinct population segments, a Western population and an Eastern population. (10) Over the last three decades, the Western population of Stellers has declined as much as 80% from the hundreds of thousands to the tens of thousands. (11) Meanwhile the Eastern population of Stellers actually has increased slightly from around fifteen thousand to around twenty thousand individuals. (12) Walleye Pollock Walleye pollock or Alaskan pollock are bottom-dwelling fish belonging to the cod family. (13) Their range extends throughout the North Pacific. (14) The younger pollock school mostly in the mid-water column and feed on small invertebrates. (15) As they age, pollock spend more time further and further down in the water column and increasingly feed on fish, including smaller Walleye pollock. (16) Spawning usually begins in February and continues, moving northward, until early summer. (17) Walleye pollock populations have fluctuated significantly in recent years. (18) For example, in the east Bering Sea, the population was 2 million metric tons (mmt) in the mid 1960's, 8 mmt in 1971, 4 mmt in 1978, 14 mmt in 1984, 8 mmt in 1990, 12 mmt in 1993, and down to 7 mmt in 1997. …