Friday, October 9, 2009

Finally - US Policy concludes Canada has the right to manage its resources in Head Harbour Passage.

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As the United States Struggles to reshape its ocean policy as outlined in the article below, interesting little tidbits emerge. Like this statement defining "Federal Waters":

Federal waters, which include the territorial sea and the Exclusive Economic  Zone (EEZ), reach from the 3- or 9-nm (nautical mile) borders of state  waters out to the 200-nm outer boundary of the EEZ, an ocean area in which  the United States has rights to explore, exploit, and manage living and nonliving resources (5-7).

So, let's see the United States has the right to manage its living and nonliving resources out to the end of the 200 mile limit, but Canada doesn't have those rights in the internal Canadian Waters of Head Harbour Passage. Well, I guess that settles the argument!! So the Passamaquoddy Bay LNG terminal developers can go home now, or go back to the Maine Legislature. How does one continue in government while promoting an LNG development. I think that might be considered a conflict of interest in most civilized countries. Would it?

Here's the entire article. Thanks Vivian.

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http://www.sciencemag.org/cgi/content/full/sci;324/5924/183 (AAAS Members
Only)
OCEANS:
Legal Bedrock for Rebuilding America's Ocean Ecosystems
Mary Turnipseed,1* Larry B. Crowder,2 Raphael D. Sagarin,3 Stephen E.
Roady1,4
Science
10 April 2009
[Vol. 324. no. 5924, pp. 183 - 184]
Recent discussions about ocean policy reform have focused on ecosystem-based
management, which fully incorporates humans and considers the cumulative
impacts of their activities on ecosystems and the services they provide (1).
This approach is logical given the highly interconnected social-ecological
systems of the ocean (2) and may be best realized through comprehensive
marine spatial planning and ocean zoning (3). But U.S. ocean governance as
currently configured cannot easily accommodate ecosystem-based management
(4).
Federal waters, which include the territorial sea and the Exclusive Economic
Zone (EEZ), reach from the 3- or 9-nm (nautical mile) borders of state
waters out to the 200-nm outer boundary of the EEZ, an ocean area in which
the United States has rights to explore, exploit, and manage living and
nonliving resources (5-7). Because of the United States' extensive
coastlines and territorial holdings, these waters cover 3.6 million nautical
square miles (11.4 km2), an area that is larger than the combined land area
of the 50 states. Over 20 federal agencies operating under dozens of laws
regulate activities, support ocean-based commerce, and protect marine
species and habitats in the territorial sea and EEZ (8) (see figure, right).
These agencies separately manage parts of marine ecosystems, without any
systematic effort to coordinate their actions for the public good (9).
Uncoordinated sectoral ocean governance.
A cacophony of activities, most regulated by separate federal agencies,
crowd ocean waters in the Gulf of Maine. A federal public trust doctrine
extended to all U.S. ocean waters would identify these agencies as trustees
of the U.S. ocean public trust, unifying them for the first time under a
common mandate to manage marine resources sustainably. LNG, liquified
natural gas; OPAREAs, Operating areas.
CREDIT: CAROLINE GOOD
With new leadership in place in Washington, U.S. ocean policy is poised for
a long-overdue transformation. Since two national ocean commissions
highlighted the need for dramatic reform 5 years ago (8, 10), progress has
been made toward understanding how to rebuild ocean ecosystems [e.g. (11,
12)]. But implementing a new, ecosystem-based policy regime for federal
ocean waters will require a solid legal foundation that provides the
authority for, and imposes responsibility upon, disparate federal agencies
to collaborate in their management of ocean resources. The public trust
doctrine would provide this critical foundation.
The doctrine is a simple but powerful legal concept that obliges state
governments to manage certain natural resources in the best interests of
their citizens (13). More generally, a "trust" is a legal relationship in
which a person or entity (the "trustee") manages a property or resource for
the benefit of another person or group. The trustee is legally bound to
preserve the assets of the trust, allowing only judicious use of the assets
and repairing the trust should it be harmed. The trustee must also manage
the trust exclusively in the interests of the beneficiaries (14). The
beneficiaries of states' public trusts include living and future citizens
(15). Thus, inherent to the doctrine is the idea of intergenerational
equity; trustees must manage trust assets so that needs of current
beneficiaries are met without sacrificing needs of future beneficiaries. A
federal public trust doctrine, if formally extended from state waters to the
outer edges of the EEZ, would identify federal agencies as having
responsibility for marine resources as trustees of the U.S. ocean public
trust and U.S. citizens as the sole beneficiaries.
Many analysts, including the presidentially appointed U.S. Commission on
Ocean Policy, have assumed that the doctrine already encompasses the vast
space of the territorial sea and EEZ (8) [supporting online material (SOM)
text]. But our recent review (16) reveals that the legal authority and
responsibility of the federal government to manage marine resources in the
best interests of U.S. citizens as a trustee under a federal public trust
doctrine have not been formally articulated by the courts or established in
statutory law. Instead, the doctrine is well established in the United
States only at the state level (15), where courts have consistently held
that the public trust doctrine requires state agencies and attorneys general
to seek legal action against private parties infringing on the public trust.
Furthermore, state trustees cannot abdicate their responsibility to manage
the trust; if they do, the doctrine enables citizens to seek judicial review
of their actions [or inaction (SOM text)]. In some states, courts have used
the public trust doctrine to protect coastal ecosystem services (17, 18),
and Massachusetts recently passed the first state law mandating a
comprehensive ocean management plan "to ensure its effective stewardship of
the ocean waters held in trust for the benefit of the public" (19). Although
states do work cooperatively with federal agencies on issues such as coastal
zone and fisheries management, they alone cannot protect U.S. ocean
resources and the services they provide. Ocean ecosystems are interconnected
across state and federal political lines, and states have limited authority
in federal waters (SOM text).
In addition to providing a consistent framework for federal ocean agencies
implementing ecosystem-based management, a public trust doctrine for U.S.
federal waters would be a policy backstop for these agencies to enforce the
public trust against infringing parties. The doctrine would also extend
greater standing to U.S. citizens to protect their interests in the
management of ocean trust resources in the instance of abuse or neglect of
the trust (SOM text). And, with the current scientific understanding of the
necessity of coordinated, comprehensive action to stem the widespread
decline of U.S. marine ecosystems (9), it would be difficult for a federal
agency operating under a public trust mandate to avoid working cooperatively
with agencies that manage other components of the ocean ecosystem.
Therefore, explicitly mandating the common responsibility of these agencies
to protect the ocean public trust could catalyze interagency ecosystem-based
management in U.S. oceans.
A federal public trust doctrine for U.S. ocean waters could be established
in a number of ways:
Executive order: The president could make expanding the doctrine a signature
of his administration through an executive order that directs all federal
ocean agencies to apply their resources toward cooperatively and sustainably
managing the ocean public trust (SOM text).
Judicial interpretation: Federal judges could extend the doctrine into the
territorial sea and EEZ by invoking the same instruments relied upon by
state courts to enlarge the reach of the doctrine--judicial precedents,
language in existing statutes, and the common law (SOM text).
Congressional mandate: The Congress could unambiguously write the doctrine
into federal oceans law. As one example, the National Oceanic & Atmospheric
Administration (NOAA) could be given the following directive: "NOAA's
mission is to manage and protect public trust resources within the waters
and atmosphere of the U.S. with the cooperation of other federal and state
agencies." Once mandated, the doctrine could be put into practice via agency
memoranda--a top-down approach to implementing broad changes in agency
practice for which there is ample precedent [e.g. (20)]--directing all
workers to carry out the legislated work of their agencies under their newly
articulated duties as trustees of the ocean public trust.
Just as assets in our economy are inextricably linked, assets in our ocean
trust portfolio are linked with one another. To move past the failing status
quo in U.S. ocean management and to build a vigorous mandate that provides
both the authority and the responsibility for federal agencies to jointly
work to manage U.S. oceans as whole ecosystems will require that we answer,
as soon as possible, two critical questions: For whom should our country's
oceans be managed, and for what purpose? The public trust doctrine answers
both of these questions. By insisting that federal agencies manage the U.S.
ocean public trust for the long-term benefit of all American citizens,
citizens and the governments they elect can begin to harmonize the concepts
of representative democracy and sustainable resource use and stewardship.
References and Notes
1.K. L. McLeod et al., Scientific Consensus Statement on Marine
Ecosystem-Based Management (Communication Partnership for Science and the
Sea, 2005).
2.J. S. Shackeroff, E. L. Hazen, L. B. Crowder, in Ecosystem-Based
Management for the Oceans, K. L. McLeod and H. Leslie, Eds. (Island Press,
Washington, DC, in press).
3.F. Douvere, Mar. Policy 32, 762 (2008).
4.P. A. Parenteau, D. C. Baur, J. L. Schorr, in Ocean & Coastal Law &
Policy, D. C. Baur, T. Eichenberg, M. Sutton, Eds. (American Bar
Association, Chicago, IL, 2008), chap. 19.
5.State waters of Texas and off Florida's western coast extend to 9 nm
offshore. The territorial sea lies seaward of state waters out to 12 nm.
6.Presidential Proclamation 5030, "Exclusive Economic Zone of the United
States of America," 48 Fed. Reg. 10605 (1983).
7.Global Maritime Boundaries Database, August 2007 version;
www.gd-ais.com/index.cfm?acronym=gmbd.
8.U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century:
Final Report (U.S. Commission on Ocean Policy, Washington, DC, 2004).
9.L. B. Crowder et al., Science 313, 617 (2006).
10.Pew Oceans Commission, America's Living Oceans: Charting a Course for Sea
Change: A Report to the Nation (Pew Oceans Commission, Arlington, VA, 2003).
11.A. A. Rosenberg, J. H. Swasey, M. Bowman, Front. Ecol. Environ. 4, 303
(2006).
12.National Research Council, Dynamic Changes in Marine Ecosystems: Fishing,
Food Webs, and Future Options (National Academies of Science, Washington,
DC, 2006).
13.Though these resources initially only included the lands and living and
nonliving resources submerged under navigable and tidal waters, states'
doctrines today typically cover wetlands and terrestrial wildlife, among
other natural resources.
14.Restatement (Third) of Trusts 2 (2003).
15.J. H. Archer et al., The Public Trust Doctrine and the Management of
America's Coasts (Univ. of Massachusetts Press, Amherst, MA, 1994).
16.M. Turnipseed, S. E. Roady, R. Sagarin, L. B. Crowder, Ecology L. Q. 36,
1 (2009).
17.J. B. Ruhl, J. Salzman, Southeast. Environ. Law J. 15, 223 (2006).
18."[O]ne of the most important public uses of the tidelands .is the
preservation of those lands in their natural state, so that they may serve
as .environments which provide food and habitat for birds and marine life?.
." Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971).
19.Massachusetts Oceans Act, 4C(a) (2008).
20.Director of the National Marine Fisheries Service, Memorandum to the
Regional Administrators, Guidance for Developing Environmental Impact
Statements for Essential Fish Habitat per the American Oceans Campaign v.
Daley Court Order (NMFS, Silver Spring, MD, 22 January 2001).
21.We are grateful to N. Baron, M. Barrett, A. Dave, S. Gary, M. Gopnik, L.
Joppa, A. Schick Kenney, D. Klinger, B. Simler, M. Wright, S. Lozier, K.
Rumble, and three anonymous referees for their comments on earlier versions
of this article. We especially thank C. Good for contributing the figure.
The Nicholas Institute and the Nicholas School provided support. L.B.C.
thanks the Gordon and Betty Moore Foundation for support during this
research. R.D.S. acknowledges support from the David and Lucile Packard
Foundation.
Supporting Online Material
www.sciencemag.org/cgi/content/full/324/5924/183/DC1 10.1126/science.1170889

1Nicholas School of the Environment, Duke University, Durham, NC 27708, USA.
2Center for Marine Conservation, Nicholas School of the Environment, Duke
University, Beaufort, NC 28516, USA.
3Nicholas Institute for Environmental Policy Solutions, Duke University,
Durham, NC 27708, USA.
4Duke University Law School, Duke University, Durham, NC 27708, USA, and
Earthjustice, Washington, DC 20036, USA.
*Author for correspondence. E-mail: mary.turnipseed@duke.edu
###
http://www.sciencemag.org/cgi/content/full/326/5949/44-b (AAAS Members Only)

Letters
Public Trust Doctrine: Too Limited
Science
2 October 2009
[Vol. 326. no. 5949, p. 44]
As someone who has long advocated a coherent national ocean policy, I agree
with M. Turnipseed and her colleagues that properly framed public trust
concepts regarding the United States's marine environments could be an
important component of federal oceans law ("Legal bedrock for rebuilding
America's ocean ecosystems," Policy Forum, 10 April, p. 183). However, the
public trust doctrine-described by Turnipseed et al. as a "legal concept
that obliges state governments to manage certain natural resources in the
best interests of their citizens"-is not necessarily the "legal bedrock"
that the authors portray it to be, particularly if the goal is broad-based
ecosystem management.
The authors rely heavily on California's public trust doctrine, which is one
of the two most expansive and ecologically protective versions of the public
trust doctrines in the United States (Hawaii's is the other). Each state has
its own version of the doctrine, and most have not been nearly so willing to
extend their public trust law to aquatic ecosystem protection.
Indeed, as framed by the U.S. Supreme Court in the seminal case of Illinois
Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), the public trust
doctrine has two main components. First, it prevents states from giving
private persons control over the beds and banks of navigable waters, and
hence control over the waters themselves. Thus, the resources protected
under the doctrine include only bed-based natural resources such as oil and
gas, gravel, and occasionally shellfish.
Second, the public trust doctrine classically preserves only three public
uses of the navigable waters themselves: navigation, commerce, and fishing.
This last use underscores the need to carefully construct any public trust
doctrine for the United States's marine waters. Many marine fish populations
are in dire trouble (1-4), and enshrining a right to fish in federal law
would undermine, rather than promote, effective ocean ecosystem management.
Robin Kundis Craig1
E-mail: rcraig@law.fsu.edu
1 The Florida State University College of Law, Tallahassee, FL 32306-1601,
USA.
References
1. D. Pauly et al., Science 302, 1359 (2003).[Abstract/Free Full Text]
2. C. Costello, S. D. Gaines, J. Lynham, Science 321, 1678
(2008).[Abstract/Free Full Text]
3. B. Worm et al., Science 325, 578 (2009).[Abstract/Free Full Text]
4. E. Stokstad, Science 324, 170 (2009).[Abstract/Free Full Text]
###

http://www.sciencemag.org/cgi/content/full/sci;326/5949/44-c (AAAS Members
Only)

Letters
Public Trust Doctrine: Too Broad

Science
2 October 2009:
[Vol. 326. no. 5949, pp. 44 - 45]

In their Policy Forum ("Legal bedrock for rebuilding America's ocean
ecosystems," 10 April, p. 183), M. Turnipseed et al. claim that extending
the "public trust doctrine" to all U.S. ocean waters would more effectively
promote cooperation in ocean governance than the "failing status quo."
However, the authors fail to consider viable nonregulatory solutions to
ocean management, such as long-term leases, second-bid auctions, and other
public-private contractual arrangements-alternative governance mechanisms
that are now commonly used to manage a wide variety of common-pool natural
resources, including public lands, fisheries, and water resources (1).
In addition to conservation goals, federal ocean agencies must balance an
array of competing uses of ocean resources, including energy, fishing,
shipping, tourism, and military. With so many competing stakeholders in
play, the public trust doctrine is too broad to provide effective guidance
in ocean management. Instead of a top-down, one-size-fits-all approach,
Congress should confer on U.S. ocean agencies the legal authority to
experiment with alternative mechanisms to determine which solutions best
promote efficiency and equity among these myriad competing uses.
F. E. Guerra-Pujol1
E-mail: fguerra@email.pucpr.edu
1 Pontifical Catholic University School of Law, Ponce, Puerto Rico 00717,
USA.
Reference
1. R. Grafton et al., J. Law Econ. 43, 679 (2000). [CrossRef] [Web of
Science]
###

http://www.sciencemag.org/cgi/content/full/sci;326/5949/45-a (AAAS Members
Only)

Public Trust Doctrine: In Need of Integration

Science
2 October 2009:
Vol. 326. no. 5949, p. 45

The Policy Forum "Legal bedrock for rebuilding America's ocean ecosystems"
(M. Turnipseed et al., 10 April, p. 183) brings much-needed attention to
ocean policy reform. The authors address the problem of too many agencies
having management authority with little overall coordination. The authors'
focus on the public trust doctrine as a solution seems misplaced, however.
Most of the agencies managing resources in the Exclusive Economic Zone (EEZ)
already work under a public-benefit mandate. The problem is that these
agencies do not coordinate or integrate their work. It is unclear how the
extension of the public trust doctrine out to the EEZ through executive
order, legislation, or judicial interpretation would lead to more integrated
management.
Before we introduce new laws and regulatory bodies or give existing agencies
further mandates, we must research the success (or failure) of existing
legislation that aims to protect the public trust. I worked for 8 years
implementing the Massachusetts regulatory program that administers the
state's Public Waterfront Act of 1866. The Act protects the public's right
in tidelands for "fishing, fowling, and navigating" and draws its legal
basis from the public trust doctrine (1). Many properties within the
jurisdiction of this program are not in compliance. The problem is not the
lack of a legal basis but rather the limited resources allocated for
compliance and enforcement with the law's mandate (2).
To jump-start integrated management in the EEZ, we need much more than
legislative, judicial, or executive backing of fundamental principles. We
need regulatory mechanisms that have been proven to be effective in other
comparable contexts, as well as recognition of the regional benefits of the
wise use of the sea.
Michelle E. Portman1
E-mail: mportman@whoi.edu
1 Marine Policy Center of the Woods Hole Oceanographic Institution, Woods
Hole, MA 02543, USA.
References
1. Massachusetts General Law (MGL), Chapter 91, The Massachusetts Public
Waterfront Act [codified at 310 CMR 9.01(2)(a) and 310 CMR 9.02] (2008).
2. M. E. Portman, J. Env. Pol. Plan. 8, 293 (2006). [CrossRef]
###


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