DEPARTMENT OF PUBLIC POLICY

POL 663: Ocean Policy and Law

Lecture Materials
© Chad J. McGuire, All Rights Reserved

Lecture 1: Introduction to the Course Overview of Policy Analysis Applied to Ocean Issues Introduction
This is a course that focuses on ocean and coastal policy. What this means is that we are looking at policy development through a lens of special ‘legal frameworks’ that apply to large water bodies.1 In other words, we are trying to understand how special legal rules (‘special’ because many of them apply only to the oceans) influence the development, implementation, and evaluation of policy issues surrounding the ocean environment. Consider the following diagram as a representation of these different geographical areas of the coast and ocean:

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The term ‘water bodies’ as used here generally refers to the ocean and, in the United States, also to the Great Lakes. For ease of understanding, the term “ocean” may be used to refer to both kinds of water bodies, whether fresh or salt water in origin.

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In the diagram we see a variety of physical property locations, some of which are land based, some of which straddle between land and sea, and some that are wholly located in the ocean. Depending on what area we are discussing in particular, there are different legal frameworks that can apply. For example, laws dealing with the development of entirely dry land may have requirements that are different from laws that apply to development of unimproved land that is near the ocean (say within so many feet of a coastline). The reasons for these differences can span from the protection of human health and safety to the protection of natural resources connected to the environment (habitat for rare and endangered species as one example). In addition, laws may be developed that are forward-looking and limit coastal land in order to protect against a future threat, such as sea level rise brought on by climate change.2 The creation of coastal and ocean laws are connected to the physical locations of the property in question. For example, if we wanted to site a wind turbine in the waters off of the immediate coastline of the United States, our ability to do so will be impacted by precisely where we choose to site the turbine. If we are within 3 miles of the coastline, then we are likely in state water jurisdiction, meaning we have to comply with state regulatory requirements dealing with the actual placement of the turbine. However, if we are beyond 3 miles offshore, then we are likely only required to deal with federal regulatory requirements. A more extreme example may occur where federal and state interests diverge, such as through the permitting of an offshore oil and gas facility in federal waters that may have the chance of impacting state waters. While the federal government may have the right to utilize waters within its jurisdiction in this manner, that right may be limited by prior agreements between the federal government and coastal states where the federal government has pledged to protect certain coastal state interests and the development of oil and gas offshore may have a reasonable probability of impacting these interests. These questions of federalism highlight yet another important area in understanding the relationships between policy and law that are dependent on location.

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It may be that laws are created from a proactive standpoint based on policy directions to adapt to future events, such as sea level rise. In such cases these laws might place limitations on the current use of land (for example, prohibiting development) in order to protect against a future potential harm that might arise on that land (inundation by approaching seas). This may make perfect sense for those of us who believe in policy being used to protect against future threats, but we may find such approaches impinge upon firmly established rights of citizens in the use of their private property: in this case the 5th Amendment of the United States Constitution prohibiting the government from ‘taking’ private land (including through regulatory actions) without a public purpose and, where a public purpose is shown, without paying just compensation.

Page 3 of 103 We will be discussing a great deal of issues that arise in the coastal and ocean context in this course. However, the context for discussing these issues will adhere to the following conceptual format: • • We start with understanding the policy picture presented in the subject being discussed or issue being analyzed. Once we understand the policy context, we move on to a discussion of the legal frameworks that apply to the policy question. Without knowing the legal frameworks, we are ‘naked’ in understanding the potential implications of our proposed policy directions (or in evaluating an already undertaken policy direction). With the policy picture and legal frameworks understood, we then apply analytical tools to the picture so that we might gain a greater sense of understanding about the issue. These analytical tools are ways of understanding and interpreting issues from the policy context. They may include such things as alternatives analysis, benefit-cost analysis, cost effectiveness, and so on.

Most of our interactions in this course will be focused on the first two bullet points above, understanding the policy picture and the legal frameworks. We will get into the analytical review of ocean policies, but this review will be limited to the degree in which we have co-opted such analytical tools from the readings and discussions.3 The goal is to provide each of you with a solid foundation upon which you can understand the major law and policy issues that relate to our oceans and coastal regions. From this starting point you will be equipped to handle a variety of questions, both conceptual and applied, in this field. To being, we look more closely at the introductory materials with a focus on understanding the larger policy context in which ocean law and policy issues arise.

Christie Introductory Materials
As you may have discerned from the introductory materials in the Christie text, there has been a lot of state and federal interaction in the area separating land and water since the 1960s (and actually quite a bit of time before).4 One thing you might get out of these
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There is insufficient time to develop the different analytical tools available in policy and legal analysis that might apply to this course. However, a number of the readings in the course make application of such tools and can be co-opted for this purpose. In addition, students who have (or will) take POL562 (Environmental Policy) will have policy related analytical tools to apply, while students who have taken POL661 (Environmental Law) or POL611 (Administrative Law) will have legal analytical tools developed that can be applied to this course.
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A number of concepts we will be discussing this semester, particularly in relation to the legal doctrines that help to define legal relationships between land and water are derived from Roman legal doctrine that has been inherited through English common law

Page 4 of 103 materials is the need to differentiate between state and federal jurisdiction. This requires some understanding of federalism, a concept that focuses on the power sharing between the states and federal government with respect to the ability to ‘occupy’ areas of law. We actually discuss this concept in some detail in the Environmental Law course (POL661), and I will borrow some materials to help make the point. The main document regulating power sharing between states and the federal government is the United States Constitution. Under the U.S. Constitution, federal government has a number of enumerated powers (literally powers that are explicitly stated in the words of the Constitution, like the powers to tax and raise and army), while the state has reserved powers under the 10th Amendment. These reserved powers are generally referred to as police powers (the power to regulate the health, safety, and welfare of the citizenry). When Christie mentions the establishment of federal policies (like the creation of the Coastal Zone Management Act as a result of the Stratton Commission report), she is discussing a shift in coastal resource management from state control to federal control. Now, that shift has not been easy for the federal government, mainly because the state has strong constitutional rights (via the 10th Amendment) to regulate coastal areas. However, through the power of the purse (Spending Clause), the federal government has found ways to entice state governments into creating federally accepted plans for managing coastal areas. Thus, where the federal government is able to directly control coastal resources under existing legal frameworks (and limitations), it tends to engage in such controls. However, where the federal government’s right to control areas of land and water near the coastline is limited due to constitutional constraints, the federal government tends to need additional means by which to adopt policy directions. The ‘means’ by which this is done gets us squarely into questions of policy development (strategic thinking) and alternatives analysis (if we can accomplish a task two different ways, is there a ‘superior’ option between the two?). A clear example of creating incentives as a means of achieving a policy goal was seen in the creation of the Coastal Zone Management Act (CZMA) in 1972. The federal government wanted coastal states to develop coastal management plans that conformed to certain ‘national’ standards (remind anyone of education policy in the U.S.?). However, the federal government could not simply mandate states create such plans because they would impede traditional state powers under the 10th Amendment. Thus, the feds needed an indirect way of getting states to create such plans. The method finally chosen by Congress was to create a financial incentive (remember Congress does have the power of the purse through the Spending Clause) by financing the creation and implementation of state plans that conformed to national standards. In addition, Congress created an additional enticement of deference: when federal activities might have an impact on an

tradition to our own legal traditions in the United States.

Page 5 of 103 approved coastal management plan, the federal government must review their conduct and, to the extent practicable, diminish the impact on the identified state coastal priority.5 The example of the CZMA provided immediately above helps us better understand the role legal frameworks play in policy at all levels: development, implementation, evaluation, etc. We will constantly be using this conceptual distinction as a means of understanding the law and policy connection as applied to ocean and coastal resources. Of course, in order to make this distinction we need to have some understanding of policy itself, and that understanding comes in large part from the Stone reading.

Stone: Goals of Policy
The Stone reading has been given to introduce each of you to concepts of policy from the perspective of goals. In its simplest form, policy is about achieving some kind of goal. For example, we have a general policy of private ownership of land in this country. This overarching policy goal is supported through a variety of public and private policy mechanisms. There are government funded, subsidized, and operated programs that aim to help people gain homeownership (HUD, Fannie Mae, Freddie Mac, etc.). In addition, our tax code contains provisions that favor private home ownership (the deduction of interest paid on a home loan is a prime example). There are other sub-policies that help to achieve this larger policy goal: government subsidies for development, infrastructure, and insurance are additional examples. The point is that we can often understand the purpose of policy through a close examination of goals. Stone discusses policy goals in about as simple a manner as possible, with excellent examples. As you move through the materials, try and think about how these laws (as they are presented) are being used to implement a particular goal. (If you really want a challenge, after you have determined the particular policy goal, try and determine if that goal is actually being met, or if there is an easier way of meeting the goal – many times there is!). To aid you in doing this, I will either: (1) remind you of the policymaking process (if you have already taken POL 500); or (2) introduce you to the concept if you have not (and so you will have a leg-up if and when you take that particular course)! Below is a summary of the policymaking process for your review and understanding:

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This deference to approved state coastal management plans is sometimes referred to as a federal consistency provision, meaning the federal government, in many instances, might alter or halt otherwise legitimate federal actions that can have an impact on state coastal resources under the CZMA. For a more detailed (early) look at this interaction between state and federal interests under the CZMA (to place the abstract into context) please see the following article: http://works.bepress.com/chad_mcguire/34/

Page 6 of 103 In summary, the model moves through a chronological progression from Agenda Setting to Policy Change. The purpose of this model is to help us conceptualize the steps involved in the policymaking process. One important point to remember: since this is a conceptual model, it does not always represent the actual manner in which policy is made. However, from an academic standpoint, this model can help us think about the policymaking process in general, and may also offer insights into where problems might arise (outside influences through the political process, special interests, lack of scientific consensus, market forces, etc.). So, let us look at the Policy Process Model and see if we can make conceptual sense of what is going on. Policy Process Model (components): • Agenda Setting o This step explains the process whereby a problem has been identified (let us stick with climate change), and a decision has been made to do something about the problem (humans have actually come together and identified the need to do something, instead of simply letting nature take its course). o We may stop and consider what factors can influence this initial stage of the process? Sometimes, there is an acute catastrophic event, like the Exxon Valdez Oil Spill that occurred in Alaska in the late 1980s, Chernobyl, Deep Horizon Oil Spill in 2010, or the Japanese Fukushima nuclear event in 2011. These events have all led to new ways of doing things – the specific event triggered the policy making process. For example, Exxon led to new regulations on the hull design of oil tankers geared towards greater stability and strength. o Other times, there is no single event, but rather a number of small events that culminate over time. Climate change, which has been an issue on the public radar for decades is one example of a policy making process that is proceeding slowly, gaining some momentum as more information linking the problem (and maybe more importantly impacts) to human activities. As the information improves on the causes of climate change, and likely as the impacts become more costly, there may be a tipping point reached where there is consensus something must be done, leading to concrete movements in favor of action. • Policy Formulation o Formulating policy alternatives is at the heart of policymaking. Think of it this way: once a problem has been identified, potential courses of action to deal with the problem necessarily have to be formulated. This is the work of the policy analyst; armed with scientific and socio-economic information, the analyst crunches the data to develop a list of alternative

Page 7 of 103 actions. The analyst might even rank the alternatives based on a stated preference, but the actual choice of alternatives is generally left to a public official. o The process of analyzing different approaches to a defined problem is, collective, policy formulation. The analyst is aggregating information from various sources to gain a sense of how the problem is occurring, and with this information what might be plausible ways of addressing the problem. Since this stage is critical in setting up the next stage, legitimization, the analyst must be particularly careful in choosing the alternative approaches. Moreover, it may be that the ‘superior’ approach is not necessarily the most ‘efficient’ (think cost savings) or ‘sustainable’ (think green or ecosystem protections), but rather the option that is most likely to receive enough votes to get passed in the legislature.6 • Policy Legitimization o This is very much a political part of the policy process, generally where politicians and interest groups engage in lobbying to favor one alternative course of action over another. The reasons for favoring a given alternative are as varied as the interests at stake. For climate change, oil and coal producers may seriously disfavor an immediate halt on hydrocarbon use. The reason? Such a policy response may put them out of business (or at least make their business environment more competitive). Environmental groups might favor harsh reductions because this is in-line with their goals. Auto manufacturers might favor a policy of voluntary measures at improving fuel economy as opposed to federal law that mandates improved fuel economy. o The legitimization prong of the process is important because it usually has a lot to do with what policy actually gets adopted. Moreover, this is the critical stage where the acceptable goal from a political standpoint may deviate from the original goal of the intended policy. Because of the various influences impacting elected officials, the manner in which policy alternatives are finally chosen can vary from the original intention of the policy in the agenda setting and policy formulation stages. To link this point to Stone, we may find that what ends up filtering its way to this stage of the process ends up looking a bit different at the output then it did at the

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This presumes the policymaking process goes through legislative adoption. Many policies are developed that do not require legislative approval. However, it is critical to understand that policies requiring such approval must be considered in light of political circumstances (where the makeup of the legislative body matters – influences, biases, current economic conditions, etc.).

Page 8 of 103 input (what goes in is not precisely what comes out). o Also, remember, while you may think such a process seems unfair because it may give one group more say than another, it actually is quite the democratic process, because those who vote on a policy (politicians) are being influenced by various groups with varying interests, likely at least one such group carries an interest that conform to your personal thinking. • Policy Implementation o Once you have legitimized a policy, it is only as good as how it gets implemented. Mexico is known for having some of the toughest environmental statutes of any country – they have “on the books” some very tough policies protecting against environmental harm. However, its environmental record of enforcing those policies is less than stellar. How can these two facts be reconciled? Simple: the statues in Mexico are rarely enforced, or to use another word, implemented. Through this example, we should clearly see how implementation is a critical component of the policy process. Not only is implementation important to ensure the policy is properly enacted (i.e., it is attempting to do what it was promised to do), but it is also important when the time comes to evaluate the policy, to actually see if the policy was effective at solving the problem it was supposed to fix. • Policy and Program Evaluation o This is the logical step where a policy is reviewed to determine if it is actually doing what it is suppose to do. For many federally funded programs, this task goes to the U.S Government Accountability Office (GAO). At the GAO website you can find reports on numerous government projects (policies) attempting to determine whether the program is effective.7 If you had both the time and inclination, then you could scour the site to find reports through its index that do nothing but evaluate federal programs meant to achieve certain policy goals. For example, Statute X is intended to improve water quality in a certain bay. It intends to accomplish this goal by spending money (appropriated by Congress) in certain ways to fund studies and outcome-based solutions. From this starting point (premise) the report attempts to evaluate if the stated goals of the policy have been met. This is an example of where a government office is attempting to ‘ground truth’ the spending of taxpayer’s money by evaluating policy goals and actual outcomes (are the outcomes helping to achieve the original stated goals?).

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http://www.gao.gov/index.html

Page 9 of 103 o Many government entities function solely, or in part, as evaluators of existing policy. In addition, many private groups and individuals also engage in policy evaluation. Policy evaluation can occur after the policy has been implemented, but also before (with less certainty); for example, a proposed policy direction (alternative) can be assessed with certain assumptions in mind to determine if the alternative is ‘cost effective’ or otherwise ‘superior’ to other alternatives in some way. This kind of analysis is more of a forecasting because it judges the policy prior to its enactment, making certain assumptions in its evaluation. One point to remember here is that there is a difference when reviewing a proposed policy before implementation, and reviewing a policy after it has been implemented. The degree of accuracy will likely increase when reviewing an existing policy rather than a proposed policy. • Policy Change o When a policy has proven ineffective (or is not performing as well as the decision maker had hoped), there is the need for change. Policies can be changed in several ways. The policy can receive a new objective, new goals, reduced funding, or be completely scrapped. Some may remember the Star Wars program initiated by the US Government; a strategic defense system that would use satellites and lasers as a means of protecting the U.S. from intercontinental missile attack. Such a program represents an example of a policy that was changed due to many causes (technological issues, collapse of Soviet Union, etc.). o Many policies are subject to change based on a variety of criteria. For example, climate change is receiving renewed interest globally due to recent scientific information, and strong episodic weather events (melting of polar ice caps, Hurricane Katrina, Super Storm Sandy of 2012, etc.). A subset of climate change, sea level rise, is also causing a change in policy direction with respect to coastal land use practices; new and updated information is helping to inform current policy and provide for changes to new policy directions. To further aid in understanding the concepts discussed, a visual example of the policymaking process as described above, focusing on the environmental field (ecosystem-based management) is presented here:

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You can see the policymaking process applied here through the steps indicated. The development of a new management plan represents the agenda setting, formulation, and legitimization stages of the process.8 Plan implementation represents the implementation stage, evaluation the evaluation stage, while the learning and adapting aspects represent the policy change stage. This kind of iterative process of trying a policy strategy and then learning from that strategy is often referred to as adaptive management. In this course, we will be seeing how government actors are constantly attempting to adapt strategies to meet policy goals. What is interesting is that we are studying a very dynamic environment in the coastal zone. As we observe the planned changes to policy directions in the area where water meets land, we must take time to understand the impact legal frameworks have on this process; the impact the law has on the capacity of government to ‘adapt’ to the changing ocean and coastal environment and our planned interactions with that environment. As a final note: those who know me, and my work, may know that I am not a huge fan of defining policymaking as a linear, sequential process. Indeed, I personally believe (especially in the field of environmental policy), that policy moves in fits, or
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Remember, not all policymaking goes through a legislative process. For example, agencies of government often are delegated the responsibility for developing policies to implement legislative intent (The Clean Air Act, a federal law, delegates the responsibility – details – of cleaning the air to the Environmental Protection Agency, which engages in the creation of policy through rulemaking as a means of carrying out this larger policy goal).

Page 11 of 103 punctuations, where large changes are seen occurring in-between long periods of stability. Those who are interested in how this theory may be applied in the marine environment (or other areas) are encouraged to contact me independently.9 However, you can otherwise rely on this process as a decent framework for analyzing marine policies in context. END OF SECTION.

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For an example of what I mean here, please see the following: http://works.bepress.com/chad_mcguire/31/

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Lecture 2: The Coast Public and Private Rights in the Coastal Zone Introduction
We all understand some notion of rights. Indeed, we live in a society where we claim rights all the time. The right to free speech, some form of education, the right to privacy; we are a nation of people who believe in fundamental rights that accrue to the individual. This ‘belief’ is enshrined in our federal constitution. In fact, the fundamental individual rights we often identify with are mainly contained in the first ten amendments of our U.S. Constitution, often referred to as the Bill of Rights. In this section we will be discussing the kinds of rights one has in the coastal zone, for example rights of ownership, rights of access, etc. The question of rights can be categorically divided between private and public rights, so one may have certain rights depending on whether they are approaching the coastal zone as a private owner of coastal property or as a public citizen with interests in coastal waters. However, in order to place these rights into perspective, we first need to review two important concepts: the first is the legal relationship between different kinds of laws (something I call the hierarchy of laws), and the second is the conceptual differentiation of property rights based on the characteristics of excludability and divisibility. With these two concepts understood, we are better prepared to understand the relative public and private rights in the coastal zone.

Hierarchy of Laws and Property Right Characteristics
Consider the following visual representation of the hierarchy of laws in U.S. law:

Page 13 of 103 Some of you who have taken other law related courses in this program might have already been exposed to this principle. In short, the hierarchy of laws represents the difference between three major categories of law created under the U.S. system of government: the constitution, laws (statutes), and regulations. The hierarchy is meant to help us understand the difference between each category from a supremacy standpoint, meaning the relative relationship between the categories of law when a conflict arises. In sum, constitutional law is the supreme law of the land and thus trumps all other categories of law where there is a direct conflict. Thus, for example, a fundamental right established under the Constitution’s Bill of Rights cannot be removed by a statute (law) passed by Congress; if a federal law conflicts with a fundamental constitutional right, then that law is considered unconstitutional. The same is true of regulations; if a regulation conflicts with either a statute or the Constitution, then that regulation is invalid. By understanding this relationship between different categories of law, one is able to assess the relative rights of different parties from a policy standpoint. For example, one should know that a policy proposal (whether legitimated through agency action via creating regulations, or through legislative enactment via law creation) that conflicts with a constitutional right is invalid, even if that proposal is adopted by the government entity. Thus, policy proposals likely to be found constitutionally invalid are suboptimal candidates for policy adoption, even if the proposal does an excellent job of achieving intended goals.10 Now consider the following visual representation of different categories of property rights based on the characteristics of excludability and divisibility:

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This is a basic example of the importance of legal frameworks in helping to understand the relative merits of policy proposals.

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This categorization (also discussed in environmental policy and law courses) helps us understand the major differences between kinds of property rights. This fundamental understanding is the starting point from which rights, whether private or public, are understood in relation to policymaking considerations and the legal frameworks that impact those considerations. At points in this course we will be viewing the difference between private and public rights in resources through the distinguishing characteristics of public and private goods as described in the figure above.11 Public goods tend to have the characteristics of low divisibility and low excludability; this means the rights inherent in public goods are the kinds that cannot readily be divided or withheld. Gravity is one example that has these characteristics inherently; no matter how much gravity I use, I cannot diminish your ability to access and use gravity. Gravity has the inherent properties of being nonexclusive and non-divisible. While gravity is an example of an inherent public goods quality, government can create rules that make certain resources have these same ‘public good’ qualities. For example, government can maintain ownership over submerged lands (the oceans and other water bodies of the United States). This public ownership can create incentives for access, for example allowing for the public to have the use of the ocean resources, say for things like fishing, boating, swimming, and other recreational activities. Even though the land is capable of being divided and excluded from certain access (unlike gravity), government may choose to adopt the characteristics of a public good as a policy choice to allow for the public access to this resource. In this case, government is making rules that create public good qualities, rather than the resource having those qualities inherently. Private goods have the opposite qualities of public goods as observed in the figure above. Private goods are highly excludable and divisible, meaning they have the qualities of division and exclusivity; one can easily define the geographic extent of the private space (1 acre of land for example), and generally through force of law, that same person has the ability to exclude others from the space. When we are referring to public and private rights in the coastal zone in this section, we are utilizing this conceptual framework to distinguish between these kinds of rights. So, for example, we may identify coastal land that abuts the ocean where both public and private rights in a defined geographic area exist. Many times these rights come into conflict with one another; for example, the right of the public to access the coastline (the area immediately adjacent to the water) may be impacted by private property rights that overlap the same coastline area. Our purpose in this section is to understand the particular public and private rights that exist in coastal areas, and also how legal frameworks impact
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We will also be discussing common pool resources – property rights with high divisibility and low excludability – in greater detail when we move into international waters jurisdiction (the high seas) in our examination of the United Nations Convention on Law of the Sea (UNCLOS).

Page 15 of 103 policy options to resolve competing interests between public and private rights when they come into direct conflict. From this starting point we are better able to devise policy strategies that address the multiple interests often at-stake, including the government actions that can impact these rights (by either removing public rights in favor of private rights, or attempting to extend public rights into areas of traditionally private rights).

What is the Coastal Zone?
We all have some notion (generally) of what we might include in our personal definition of the coastal zone, but even though we might identify similarities amongst our personal definitions, there would likely also be some amount of variation. Many identify it as the area where the ocean meets the land. Scientifically, this may be mostly accurate, especially if we are talking about areas that are influenced by the tides. Others may take a non-scientific route to defining the term, using geopolitical criteria. Borrowing from part of our visual image in the preceding lecture, consider the following representation of a coastal zone:

The coastal zone as described above can include elements of the following (moving from upland to the ocean): • The upland area, usually defined as dry land that exists beyond a line of vegetation.

Page 16 of 103 • • • A vegetation line demarking the upper extent of physical characteristics associated with many coastal zones. The dry sand area of a coastal beach that extends from the average high tide line to an area of vegetation. This portion of the beach may include dunes. The wet sand area that incorporates the intertidal zone, or the area of land that is between the average high and low tide lines. This area if often inundated with water during high tide cycles and then exposed during low tide cycles. Depending on the area, it can cycle between inundation and exposure from once to multiple times in a day. The ocean area, which is demarcated starting at the average low tide line and then moving seaward.

Generally definitions of the coastal zone (legal or scientific) do not extend significantly beyond the limits described above in the figure as the “potential coastal zone.” However, in some cases, such as Hawaii, the entire landmass of the island is designated as ‘coastal zone’ for certain purposes (for example under Hawaii’s coastal management planning within the Federal Coastal Zone Management Act). In this course, it is important to distinguish scientific definitions from legal or policy definitions. When we consider the term “coastal zone” from a legal or policy standpoint, we may mean something drastically different than you might imagine. Certainly, the legal and policy definitions of a coastal zone vary, sometimes significantly, from an accepted scientific definition. Without getting into a debate of definitions, we can look at certain characteristics of coastal zones and relate those characteristics to different rights that exist in the coastal zone in general. Generally speaking, we can say the following regarding rights and their associated relationship to different coastal zone characteristics: • • First, there are both public and private rights in coastal zones. Generally speaking, the areas above the mean high tide line are considered private land.12 Thus, most beach areas that exists above high tide are privately owned, much like any other piece of real property would be owned. However, within this private ownership there may be other important issues to consider. For example, do public access rights exist in private property adjacent to the ocean? Without access to public ocean resources, the public’s ‘right’ to use the water is seriously diminished. Thus, there may be instances where government seeks to ensure public access to the shoreline, even if that

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In some cases, like Massachusetts, private ownership rights extend to the mean low water mark (low tide) giving private landowner’s ownership rights to the intertidal zone.

Page 17 of 103 access impedes upon private landowner rights. The degree to which government can force public access over private land is constrained by constitutional law principles, particularly the 5th Amendment of the U.S. Constitution. We will discuss this in greater detail later in the course. • • The area below the mean high tide line is generally considered public land. Each state is allowed to determine the landward extent of their coastal zone (this will be described in more detail later). Massachusetts, for example, extends its coastal zone from the water until 100 feet beyond the first major land transportation route encountered (road, rail, etc.). Thus, the coastal zone in Massachusetts extends pretty far inland, at least from a legal standpoint!13 The seaward extent of the potential coastal zone in most states ends about 3 miles from the mean high water mark (actually referred to as baseline, something we will discuss in greater detail later). This is not because there is a scientific reason for this demarcation, but rather because the jurisdictional limit of most coastal states is 3 miles by federal law under the Submerged Lands Act.

So, now that we have some indication of what encompasses the coastal zone, we must now look at the rights of individuals (public and private) within the coastal zone.

Various Rights Within the Coastal Zone
Both private and public citizens have rights within the coastal zone. Private citizens are simply those people who own real property that is located adjacent (or within) the coastal zone depending on the definition. Public citizens are generally everyone else. (As an example, a private citizen attempting to access the coastal zone in an area that is away from their property is considered a public citizen for analysis purposes). First and foremost, coastal lands (however they are defined in a particular state) are subject to the Public Trust Doctrine. As such, coastal lands cannot be used in a manner that interferes with the basic public trust rights of the citizens. While these rights vary from state-to-state (we will see this), the three basic rights are: fishing, fowling (bird hunting), and navigation (we will return to this concept in more detail later). The Public Trust Doctrine forms the foundation of the public interest in land. From a legal standpoint, there are two separate property interests in coastal lands: (1) the jus publicum (the public interest); and (2) the jus privitum (the private interest). While the private interest can be separated, the public interest cannot. As an example, a State may sell coastal land to a private individual. However, in making this sale, the State can
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Cape Cod and the islands of Nantucket and Martha’s Vineyard are considered to be entirely within the coastal zone, no matter how far inland one travels.

Page 18 of 103 only transfer the jus privitum (private interests). It cannot sell the jus publicum (public interests), because such a sale is forbidden under the Public Trust Doctrine. So, why would someone want to purchase a property adjacent to the ocean (or a lake or river) if these areas are subject to public rights of use? Well, of course there is the view! Secondarily, these private owners enjoy special rights when it comes to water access. In the text, you read about the rights of riparian or littoral landowners. These terms refer to the special rights of ownership for those private owners who own property adjacent to the water (fresh water = riparian, salt water = littoral). (Lawyers and policy folks like to use special words to make themselves sound educated and important! So do scientists!) These special rights are as follows: A right to the natural flow of the water (right to have the water flow in an unobstructed state). This becomes important if you think of a landowner who has a dock for a large boat. If the adjacent landowner obstructs the flow of water, sand may accumulate, and the water’s depth may decrease leaving the landowner unable to dock their boat! A right of access. This includes: o Rights to additions (termed accretions). Without this right, the natural movement of sand accumulating may create a barrier between the landowners original property and the water (i.e., they may no longer be adjacent to the water. o A right to purchase adjacent submerged land (if the coastal state was to sell its right – jus privitum – in the submerged land). o A right to maintain contact with the water. This is linked to the right to additions mentioned above. If they are waterfront owners, they want to remain waterfront owners! o A right to fill (if allowed by state and federal law). A right to wharf out. I have always liked this term. Sounds like someone has a right to go crazy! It really means the right to create a dock or pier (depending on your use of the term). Finally, a right to use of the water for commerce.

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It is important to note all of these rights are contingent upon other things. For instance, the right to wharf out is contingent upon the federal and state governments rights to maintain navigation routes. The important lesson to remember is nothing is absolute in the law. When we discuss rights within the coastal zone, we are talking in generalities, and there are substantial variations depending upon which state you are operating in, and the particular conditions encountered.

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Boundaries of Rights
As we move through the material, you will see all kinds of limitations placed on the rights mentioned above. Most of these limitations come from the public sector (federal and state governments). Those who regularly work in the marine field will recognize these sources of limitations. To maintain our sanity, we will stick with understanding the big picture, and then work our way into some of the details. A quick historical note: As mentioned in the text and earlier in the introductory materials, we have inherited our coastal zone rules from the common law tradition in England. England, in turn, inherited its rules regarding the coastal zone from the Roman Empire. When I spoke earlier of the jus privitum and jus publicum, I was speaking of this tradition. The Public Trust Doctrine was really a way of dealing with the private and public interests in coastal land. When this tradition was inherited by England, the King or Queen (sovereign) was the owner of these lands. S/he could divest (give away) the private interests in these lands, but they could not deprive the public of using the lands for basic needs (fishing, etc.). When our colonies were founded, these rights were ceded to the colonies, and this tradition continued throughout U.S. history. After WWII the federal government attempted to gain control of coastal waters. However, this attempt was stopped by Congress (which is made up of representatives from each of the states) when it passed the Submerged Lands Act (SLA). After passage of the SLA, each state was the owner of coastal lands, and could dispose of them as they wished, with the limitations set forth under the Public Trust Doctrine. In the 1970s, the federal government created an incentive plan for states to develop uniform coastal management plans. This incentive plan became law in what is known as the Coastal Zone Management Act, or CZMA for short. Many who work in coastal areas are acutely aware of the CZMA. We will be discussing this management plan in future readings. The point of this historical note is to provide additional background on the development of coastal law and policy. Today, each state defines its relative boundaries when it comes to the coastal zone (we know this from what is stated above), but those boundary rights are less clear between federal and state when it comes to regulating the coastal zone. We will see the interactions of law and policy through this filter of federal and state regulation. While the text has introduced you to this concept, we will wait a bit to discuss this subject in more detail.

Applications of These Rights
With some understanding of rights in-hand, we can now think about the application of rights to particular policy issues. For example, what about access rights to coastal resources? In order to answer this question, we must know something about the property characteristics of the resource in question: does the resources have public good characteristics, or does it contain private good characteristics? If the resource itself is public in nature, then maybe there is a right of access that is also public in nature. For example, fishing was mentioned earlier as one of the activities that is traditionally

Page 20 of 103 protected under the public trust doctrine; so the act of fishing itself seems to be a kind of ‘resource’ (or activity) that is a protected public right. Even if the activity of fishing can be considered public, the fish that are the purpose of the activity cannot as easily be considered ‘public’ resources, at least not in all instances. When they are in the water amongst other fish they may naturally be considered to be ‘public’ resources (because they exist in the submerged lands owned by the state or federal government – depending on where exactly they are located at a given moment in time). However, when they are captured they are no longer part of the public zone, but rather become the private property of the person who has captured the fish (under the legal doctrine of capture). This makes some sense if we go back to our property rights characteristics chart above. Fish are both divisible (we can separate one from another) and excludable (once taken, Fish A is no longer available for capture by someone else). But even if fish are capable of being transmuted from a public to private resource when captured there are conditions on this, at least legal conditions. For example, one might be required to obtain a permit from the local government in order to ‘legally’ capture the fish. Or, the particular fish captured may be endangered and thus not capable of private ownership by operation of law. There are a lot of different conditions that can be placed on the fish that alters its property right characteristics. Like gravity, some of the fishes property right characteristics are intrinsic to the fish itself, while other are external to the fish, created and enforced by legal creation. As we think about public and private rights in the coastal zone, we must be able to conceptualize these different characteristics under different circumstances. The circumstances described above that changed the property right status of the fish were due primarily to legal frameworks. As noted earlier, one of our goals in this course is to really begin to think about the role the law plays in advancing (or inhibiting) policy directions. We take up this topic next by focusing on public access to the shoreline, looking at different legal frameworks that impact this important right. END OF SECTION.

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Lecture 3: The Coast Public Access to Beaches and Shores Introduction
So, have you ever thought about the legal right of access when you go to the beach in the summer? Maybe, maybe not. I remember my first introduction when I was working as a lifeguard in my younger years. I was employed at a private beach, and the manager approached me and pointed out some people who were walking ankle-deep in the water. Apparently they had started from some access point outside the boundaries of the private beach. However, they were not members of the beach association; so essentially people who were nonmembers were wading in water that was ‘reserved’ for private members of the beach club. Immediately the beach manager approached me and stated, “something has to be done, you have to do something!” I thought to myself, “what can I do?” Or more importantly I wondered what legal rights do these people have, if any, in comparison to the legal rights of the members of the association? This was an early introduction for me into the murky waters of public access to the shoreline. I often think of this experience when I study issues related to public access rights in the coastline. I find recent cases dealing with access rights to provide excellent examples of the expectations amongst those who utilize our coastal resources; often the expectations of the users do not align with the legal rights between user groups. Moreover, when user conflicts arise, I find governments are often at a disadvantage when trying to balance these conflicts. Before delving into the legal frameworks that apply to public access rights, we can consider the policy setting in which public access to ocean resources exists. With this broader policy understanding understood, we are well placed to begin understanding the legal frameworks in the context of policy options (and ultimately limitations).

The Policy Setting for Public Access
We can begin a thought experiment about public access to coastal resources with a premise that suggests government serves multiple functions and interests when it comes to coastal resources. For example, we know government is the owner of submerged lands (tidal waters) and holds that ownership in trust for the public (under the public trust doctrine mentioned in the earlier lecture). Thus, in order for government to fulfill its obligations under the public trust, providing public access to coastal resources is an important direct policy goal. Many coastal municipalities also operate on a real estate property tax revenue structure. Thus, coastal towns in many areas have historically catered to coastal development to support local revenues; high priced coastal homes provide high appraisals and thus higher property tax revenues per unit. In this way, governments indirectly support private

Page 22 of 103 landowner rights in so much as those rights create demand for high priced coastal properties in the local community. The multiple goals of government mentioned above – providing public access to coastal areas while creating incentives for private coastal development – can result in a direct conflict between user groups with the public on one side of the conflict and private homeowners on the other. Putting aside the impact legal frameworks might have on this conflict for the moment we can see how the divergent public and private interests can muddy the policy goals of government. For example, does government advance the public interests for access to the coastal zone where doing so might negatively impact private interests (and thus impact demand for – and ultimately valuations of – coastal property)? Or does government advance private interests in a way that inhibits public capacity to access the shoreline? As you might discern from the questions posed above, the policy setting for public access from the standpoint of government is not an easy setting to understand. There are mixed policy signals that can influence the development, implementation, and evaluation of different policy approaches. Understanding the competing goals that can exist is an important foundation from which public access to the shoreline must be understood by the policy analyst. Finding the ‘right’ mix of public access goals while also respecting the benefits of private coastal ownership is, in many ways, the ultimate policy goal in this area. With this basic policy setting understanding under our belt, we can look at some of the legal frameworks that impact this setting.

Legal Frameworks Influencing Public Access Rights
Given what has been stated in the introduction to this lecture about the policy setting, we can now take that information and begin to ‘overlay’ legal frameworks to help see how certain policy goals are affected by law. Remember, we are dealing with access rights, which for the most part are closely tied to physical property or specific geographic space. This means we will be examining property rights between public and private interests in the coastal zone. As such, property law will be one major legal framework that applies to our analysis. In addition, constitutional law will be another legal framework because we have a situation where government is acting to impact private citizen rights (in this case private property rights of citizens). Since the U.S. Constitution protects private citizens against government conduct, and because public access to the shore includes government actions, constitutional principles are at stake. Let us begin by recalling our hierarchy of laws from the previous lecture material represented in the figure here:

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We cite this hierarchy now in order to place the two major kinds of legal frameworks applicable to public access into perspective: constitutional law and property law. We know from the hierarchy that constitutional law is the supreme law of the land, meaning any law (statute) or regulation that directly conflicts14 with constitutional law principles is ‘unconstitutional’ and therefore invalid. Thus, for example, a government action that attempts to create public access in such a way that violates a constitutional protection of citizen rights will be found to be unconstitutional and thus invalid. As such, we can collective scrap policy options for public access that result in unconstitutional applications of government power; the constitutional legal framework overlay on our policy approach in this example shows us that our policy approach is invalid, even if the approach is a really good idea. Most property law principles are established as either common law principles (unwritten law that is ‘common’ to our heritage) or embodied in legislatively passed statutes. Sometimes a property law principle can also be enshrined in constitutional law, for example where the property right is seen as a fundamental right to citizens. With the exception of constitutionally enshrined property rights, most property law (statutory or common law) is subservient to constitutional principles. Thus, if a legislature were to
14

The question of exactly what is a direct conflict is not an easy question to answer. Conflict of Laws is an entire legal subject onto itself. However, we can note that conflicts in law are judged primarily by the judicial branch of government, at least where the conflict question is being reviewed post facto (after the fact). In addition, we can also note that courts go out of their way to “harmonize” potential conflicts of law (find no direct conflict) because a cannon of judicial review is that legislatures do not pass laws that are meant to be in conflict with other laws or constitutional principles (i.e., the legislature does not purposefully attempt to pass invalid laws). That being said, conflicts do arise and courts do find either an entire law (rare) or the application of the law in a particular instance (more common) is in direct conflict with a ‘superior’ law.

Page 24 of 103 pass a property law that directly conflicted with a constitutional principle, then that law would generally be found to be unconstitutional. Through the use of our hierarchy of laws, we have a starting point in which to understand the influence of legal frameworks on policy choices about public access rights (and other related rights in coastal areas). So how do these two legal frameworks – constitutional law and property law – work in practice? To begin, we need to understand that when government actions are based on advancing public rights (such as access to a public resource like the ocean), the government is engaging in a fundamental state function for the benefit of its citizens (recall the public trust doctrine). Thus, it can be argued that the government’s actions are constitutional in a sense because they are based on Tenth Amendment reserved powers to the states under the U.S. Constitution. Of course, when that government action impacts a fundamental property right (in this case real estate) of private citizens, then the application of that government power is checked by the Fifth Amendment of the U.S. Constitution (the takings prohibition), which limits government’s actions on private property rights. Visually this interaction of constitutional law principles is represented here:

In the figure we see a spectrum (or continuum) where two constitutional principles are placed on opposite ends of the spectrum. On one end is the 10th Amendment police power of the state to enact laws for the legitimate health, safety, and welfare of its citizenry. On the other end is the takings prohibition of the 5th Amendment. From a policy standpoint, where a government action is seen as clearly on the right side of the spectrum (in the green outside of the yellow box), then the action can be said to be constitutional. However, where the action is in the red on the far left of the spectrum, then the government action can be said to be unconstitutional. Finally, where the action is in the yellow box, then the validity of the action (whether it is constitutional or unconstitutional) is unclear.

Page 25 of 103 Most of the materials on public access really boil down to a consideration of the above spectrum, at least when we are focused on the affect of legal frameworks on our policy options. We can use the above figure as a conceptual overlay to aid us in discussing policy options for public access. Where the policy option exists clearly in the green area of the figure and outside the yellow box, we are (for the most part) safely within government’s legal rights and safely outside of potential legal pitfalls – as least as far as 5th Amendment constitutional questions are concerned. Where we are far to the left and in the red territory, our policy option is dangerously afoul of constitutional rights. Where our policy alternative sits in the yellow box, we are in a sort of quagmire in that we do not have a clear indication of the legal validity of our proposed action. There are a great number of details that need to be discussed in order to really understand the usefulness of the spectrum identified in the above figure. For example, what kinds of actions (policy proposals) are clearly on the far right (in the green) or far left (in the red) of the spectrum? To answer this question we look to case law, which is based on judicial interpretations of constitutional rights. Case law helps us know what facts lead to a violation of a constitutional principle, and alternatively, what facts lead to a valid exercise of police power. Over time, as more cases are decided, we can even begin to ‘shrink’ the yellow box in the center of the spectrum because newer cases interpret different facts and thus lessen the kinds of actions (policy options) that are currently unknown in terms of their impact on constitutional rights. This is one main reason why case law is an important way of understanding legal frameworks; by reading cases (and keeping up on new cases) we get a clearer sense of the ‘lawfulness’ of different kinds of government actions. We don’t have the time to fully engage in an understanding of case law (for example, the different kinds of precedents based on the level of appeals court hearing the case), but this information is available and discussed in sufficient detail in the Environmental Law (POL661) offered by The Department of Public Policy.15 Now with some understanding of the major legal frameworks affecting decisions about public access, and also carrying forward the policy setting that applies to public access issues (government’s multiple roles and sometimes competing incentives), we can now turn to specific property laws that impact access (the main parts of the materials in the Christie reading).

Applying Legal Frameworks to Public Access
The main legal doctrines employed to justify, maintain, or create public access to ocean resources, as noted in the readings, are prescription, dedication, customary use, and public trust. In order to understand these concepts, we will use the following visual representation as a starting point in discussing each framework:
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A more detailed explanation on both common law and case law principles can be found in the following lecture materials, Finding the Law, from POL661: Environmental Law: http://www.scribd.com/doc/119182158/POL661-Lecture-3

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The above figure notes the main geographic areas collectively making up what is referred to as the coastal zone. Generally, private rights in the coastal zone extend from some defined upland area, through a line of vegetation, and up until the beginning of the intertidal zone, generally demarcated as the mean high tide line.16 This is represented in the figure by the black dotted box that surrounds the figure of the home, extending from the upland area through the line of vegetation. The orange box entitled “Access” is meant to represent an access point for the public in order to reach the shoreline. We will use this general figure to help explain the different legal frameworks that are often used to provide public access to the shoreline.

Easement By Prescription
Prescription is a legal term that relates to a certain type of easement (another legal term). In most states, access to some portion of private property can be obtained if the following is shown:

16

Remember, certain coastal states, like Massachusetts for instance, use the mean low tide line as the extent of private rights in coastal land.

Page 27 of 103 • • • • Actual use of the portion of the property from which the right is being claimed (the public is using the specific portion of the property for access to the shoreline); The public use is continuous for a specific period of time (usually from 5 to 20 years). The use is against the interest of the owner (i.e., the use must be adverse to the owners wishes); and The use of the property is open, meaning it can be found out through a reasonable inspection of the property.

If the above requirements are met, then a legal right to some portion of private property can be obtained by the legal doctrine of prescription. Using the figure above, the prescriptive easement might include the area denoted as “Access” in orange in the figure. To create a public right of access through prescription, then the public at-large must use the access point through the private property the manner described: continuous use of the private property that is open and adverse to the private landowner’s interests minimally for the prescribed period of time (between 5 and 20 years depending on the coastal state). If all of these conditions are met, then the public may achieve the easement to the coastal zone by prescription. Consider the public policy implications for such access to coastal resources. Certainly the legal doctrine of prescription can allow for the creation and maintenance of public access to coastal areas, but it does so at the expense of private ownership rights. Beyond any discussion of the constitutionality of such actions (for example, does the government support of such a public right bring us closer to the 5th Amendment red area on our spectrum of takings vs. police power above), we can simply consider the practical consequences; private landowners who cannot ensure the validity of their title to the property will be less inclined to value such property as high as they might otherwise. In other words, such legal doctrines as prescription may indeed provide for public access to the shoreline, but the doctrine does so at the expense of the private real estate market, undermining an important component to our national economic system. And when underlying valuations of private coastal properties are compromised so too are the local property tax revenues that are based on such valuations. If we think of property taxes as a redistribution of wealth to support important local social programs (public education, public services, etc.), then we can see how such a legal instrument might endanger this system of government.

Implied Dedication
Have you ever been told to speak your mind? This is critical when it comes to implied dedications, because if you see people using your property, and you fail to make a stink, you may have unwittingly given those users a legal right to use your property for access (at least under this legal doctrine).

Page 28 of 103 As the term might suggest, one engages in an implied dedication when they allow another (others) to use a portion of their property, either with intent, or without. If a landowner intends to allow another to use the property for access, this is known as dedication by acquiescence (the landowner has acquiesced to the use of the land). Because the owner intends to allow the use, there is no specific length of time that need be shown. The other form of implied dedication is that by adverse use for the prescriptive period. This is like the prescription above, but based on the intent of the public (i.e., the court will look to the intent of the public to use the property, rather than looking to the intent of the landowner); an implied dedication through adverse use means that the public intended to use the property against the private landowner’s will, irrespective of the landowner’s willingness to provide access. If either form of implied dedication is shown, the public (rather than an individual) receives the right to traverse the property in order to gain access to a water resource. As you can imagine, the very same policy issues described above under the easement by prescription section can apply to this form of ‘creating’ public access over a private parcel of land.

Public Trust Doctrine
Recall the Public Trust Doctrine; it prevents the public interest in water resources from being alienated (it preserves the public right to access water resources for certain purposes – you can recall this from the earlier lecture and materials). Well, if the doctrine protects the public interest in water resources, shouldn’t it also protect the right of public access to those resources? Some states have used just this rationale to defend laws that allow public access to private uplands in order to access water resources. New Jersey is a prime example, where a fundamental PTD right to access waters was for recreation purposes. Thus the need to access the adjacent sandy beach area (even if private land) is connected to the purpose of the public trust doctrine; without allowing for such access, the public’s right in the coastal zone is usurped.17 Other states (including Massachusetts) have found such attempts to extend PTD rights onto private lands an unconstitutional taking of private property. The main reason is the new uses stated (recreation, etc.) were not part of the original or traditional uses of the PTD (fishing, fowling, navigation).

Alternative Public Access: Creative Legal Framework Solutions

17

It is important to note that New Jersey extends its public trust doctrine rights to include recreational activities at the shore such as swimming and sunbathing (beyond the traditional fishing, fowling, and navigation). As such, access to the sandy shoreline as well as the water is implicit in order to exercise these expanded public trust doctrine rights.

Page 29 of 103 The legal frameworks mentioned above are examples of ways in which to justify public access to the shoreline. They are not the only methods of providing such access; for example, some states like California (and others now) have created opportunities for public access by making access conditional for building permit approval where private coastal landowner’s wish to improve their coastal properties. Consider the following visual example of how public access to the shoreline can be impeded by continuous development along the shoreline:

The public access to the shoreline has been effectively removed because private land ownership extends the entire length of the coastal area (the private ownership is continuous; where the private property line of Owner A ends, the private property line of Owner B begins – and so on). This is precisely the situation that occurred in many Southern California coastal communities; the private land ownership is continuous for, sometimes, miles, leaving the public without regular access points to the shoreline. As a result, public access is effectively removed. California (highlighted in the Nollan case, which is a bit hard to understand in light of the holding18) decided to deal with this public access issue private property by private
18

The Nollan case reads conclusively that the attempt to condition the development of private coastal land on providing public access is a violation of constitutional principles, specifically the Fifth Amendment of the U.S. Constitution (essentially, Nollan suggests conditioning development of private land on creating public access moves up too far towards the left on our spectrum of takings vs. police power figure (too far into the red). However, this is really not the case. The problem in the Nollan case is that the

Page 30 of 103 property. Rather than looking to the traditional public access rights described above (prescription, implied dedication, etc.), California turned to its building permitting regime in coastal areas. When a private property that was deemed to exist in a coastal area submitted an application to develop (or redevelop) the land, the permit application was subject to an additional requirement: public access has to be created, if not already existing on the property, as a condition in approving the building permit. If the application does not provide for public access, then the permit can be denied on this ground. So, if you own coastal real estate in Southern California, and you want to improve the property by tearing down an old structure or adding on to an existing structure, then you must ensure that public access through your private property is part of the building plan. Over time this technique has been proven to be quite effective in establishing public access points along the California coastline. Today, much of Southern California looks like the following due to this measure:

government had argued the reason for conditioning the building permit on public access was to ensure the publics right to the view of the coastline. The U.S. Supreme Court noted there was not a sufficient nexus between physical access and view (one did not necessarily need to be provided with physical access to the shoreline in order to view the shoreline). After this case was decided, California changed its rationale for the permitting condition from ensuring the public’s view to ensuring the public’s access to the shoreline. Once this was done there was a clear nexus between the purpose of the regulation and the manner in which the regulation was carried out.

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Public access points dot the coastline adjacent to private properties. If we put our policy hats back on, we might see this method of creating access as a superior policy alternative when compared to the traditional legal methods described above. First, the access is created through the choice of the private landowner; it is only when the private owner decides to improve their property that the requirement of creating public access is triggered; because public access is initiated by the landowner through a decision to develop the property, there is a greater acceptance of the access by the landowner. Second, the requirement of allowing for public access is equally shared by all private coastal landowners who choose to improve their coastal properties; since the requirement is placed on all coastal development, the ‘burden’ of creating public access is distributed amongst all coastal landowners. If we bring forward the main points from the Stone reading about equity and policy goals, we might find such equitable principles in the California example of developing public access. The point of this section is two-fold. First, our goal was to understand the, often, competing goals of public access and private ownership in the coastal zone. Second, we aimed at getting our heads around the legal frameworks that afford public access to the shoreline. Third, we desired to assess the relative merits of different public access frameworks as means of achieving the multiple policy goals of access, development, and utilization of coastal resources. We will be bringing forward these principles, both policy and legal, as we continue our exploration of ocean law and policy in this course. END OF SECTION.

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Lecture 4: Management of Coastal Resources The Coastal Zone Management Act (CZMA) Introduction
We can begin here by recalling the traditional zones of the coastline as more particularly described in Lecture 2, a visual representation of which is made available here:

From this visualization (and from our previous material on the subject) we can see the coastal zone includes both portions of dry land as well as portions of submerged land.19 As mentioned previously, the exact extent of the coastal zone varies depending on the legal definition applied in a particular coastal state; we do not have a federal standardized definition of “coastal zone” in this sense, rather each coastal state provides a defined geographic boundary based on a number of factors. In this way we come to understand that the term “coastal zone” has a legal-political definition; although coastal zones will share similar physical characteristics from one state to another, there will be differences among these states in how they define the exact characteristics of their coastal zone.

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“Submerged land” is a term that refers to land underwater, such as bottom of lakes, oceans, etc.

Page 33 of 103 Beyond differences in the definitions of “coastal zone” adopted by each coastal state, there are also differences in the approaches coastal states take in the management of their defined coastal resources. For example, consider the following visual representation:

Coastal State A may be located in an area that is conducive to tourism, including use of its coastal waters for recreational purposes. For Coastal State A, water quality and natural resource protection might therefore be a high priority because these ‘qualities’ are important contributors to its focus on tourism and the economic benefits that flow from tourist activities. Coastal State B may have different priorities when it comes to its coastal waters. Rather than having a thriving tourism industry, Coastal State B may have a history of utilizing its coastal waters for offshore oil and gas development. In this case, Coastal State B may prioritize energy development over water quality issues. Coastal State C may have a thriving local commercial fishing industry and identifies its costal waters as important ‘nursery’ habitat where commercial fish species develop from juveniles to adults, thus Coastal State C may prioritize the protection of the coastal waters to support its commercial fishery. The examples of Coastal States A, B, and C above provide some insight into the different kinds of priorities that can exist among coastal states in the use of their coastal waters. Now imagine if coastal states existing in immediate proximity to one another having different priorities where those differences have the potential to impact each other’s priorities. Or, imagine the situation where a coastal state’s priorities for its coastal waters are being impacted by federal activities that exist just outside of the coastal states jurisdiction, for example a federal permit for oil and gas development existing just beyond the 3-mile jurisdictional limit of a coastal state that prioritizes the pristine water quality of its waters. The federal activity has the potential to negatively impact the coastal

Page 34 of 103 priority of the state in this case, such as where a leak in the drilling for oil can result in the oil being brought into the coastal waters by the natural movement of the tides. The point being made here is there is a strong potential for competing priorities between coastal states and also between a coastal state and the federal government to impact policy goals in using coastal and ocean resources. One legal framework that has been developed to help deal with these sometimes competing priorities and goals is the Coastal Zone Management Act (CZMA); our goal in this section is to better understand this federal statute and to see how it attempts to deal with conflicts among coastal states and the federal government.

Policy Impetus for the CZMA
Before delving into the statutory elements of the CZMA, we can take a moment to consider the policy setting from which the CZMA was derived, and by doing so get some understanding of the reasons behind the statute. In addition, by looking at the development of the CZMA, including the legal frameworks that constrain its powers, we can better understand some of the limitations of the CZMA as a tool for implementing policy objectives. To begin we bring forward our conceptual rendering of the hierarchy of laws:

The CZMA is a law, meaning it sits in the middle of our hierarchy; it was passed by our U.S. Congress in 1972 in order to set up a framework to ensure each coastal state managed its resources in a way that would limit the differences between coastal states. The impetus for this policy goal included the Stratton Commission Report, which was one of the first comprehensive reports on the marine resources of the United States. One of the recommendations of the report was to have a more centralized approach to the management of marine resources. Thus, by creating a federal law with certain management principles (the CZMA), some consistency would be created among coastal

Page 35 of 103 states in the manner in which coastal resources were identified, prioritized, utilized, and planned for. One of the questions that arose in the development of the CZMA was the degree of federal authority to pass legislation that commanded states in how they managed their coastal resources. Under traditional interpretations of federalism, the federal government has limited ‘capacity’ to influence states in how they manage their sovereign resources, and this has historically included coastal resources (we will engage in an explicit discussion of this concept when we get to the materials on the Tidelands Controversy and the Submerged Lands Act). Since this issue of federalism is imbued into the U.S. Constitution (including the Tenth Amendment), our hierarchy of laws suggests constitutional limitations trump statutes (laws) like the CZMA that directly conflict with those constitutional principles. When applying our legal framework to the coastal zone, we find limits in how far the federal government can go in forcing coastal states into adopting specific policy goals geared towards the uniform management of coastal areas. The CZMA is an attempt to create such uniform standards, but the manner in which the statute goes about accomplishing this goal cannot be direct, for example utilizing command-and-control language that sets a standard and then forces coastal states to adhere to that standard; the lack of constitutional authority by the federal government to force coastal states to comply with uniform management approaches means the CZMA, as a representation of a policy preference, must implement the federal goal in a less direct manner. It is important to understand how the CZMA functionally operates by ‘overlaying’ a legal framework analysis because it helps us to see limits on how the statute can implement the federal policy objective to create uniform coastal management standards. For example, we now know from our legal framework analysis that the federal government cannot force coastal states to adopt specific management standards (via command-and-control legislative directives for example). However, it is possible for the federal government to cajole (create incentives) coastal states into adopting these standards. And indeed, we find these very mechanisms of ‘carrots’ contained in the CZMA as a means of getting coastal state adoption of federal standards. In fact, two of these carrots (federal funding and federal consistency) are main topics of our conversation in the CZMA itself. A final point before delving into the CZMA in detail is to recognize the impact of reduced legal authority on the ability of the federal government to get coastal states to adopt certain coastal management standards; the reduced authority means that the CZMA is really a consensus-building instrument from a policy standpoint. When legal authority is diminished (I can’t tell you what to do with impunity), then the policy stance changes; I must look to a variety of ways to get you to see my point-of-view and, hopefully, adopt that view. This is a very different kind of policy stance, and as a result it impacts the manner in which a statute like the CZMA is implemented. Pay close attention to this unique policy setting as we move into a deeper review of the CZMA as a method for managing coastal resources.

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Framework of the CZMA
The Coastal Zone Management Act (CZMA) is a federal statute, which means it is a law that is passed by Congress (and thus it sits below constitutional protections, like federalism, and above regulations that contradict express provisions of the statute). The stated policy goal of the CZMA in the statute is as follows: “To preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.” We can begin by noting these policy goals are a bit contradictory in relation to one another. For example, is the goal of preservation of coastal resources the same as development; can one preserve the coastal zone while simultaneously developing it? The same question can be posed towards the goals of restoration and development; is one ‘restoring’ the coastal zone if they are developing it? Like many compromises, the CZMA is a statute that bears the hallmarks of building consensus; in order to garner enough votes of senators and representatives, the language in the statute often reflects the various stakeholders and groups that have vested interests in coastal areas. Thus, we are left with a policy statement in the statute that is somewhat ambiguous. However, we do know from this statement that coastal states adopting CZMA standards can develop plans that include any (or all) of these stated purposes above. In this way we have a legal framework through the CZMA that provides lots of latitude to coastal states. Pragmatically, the CZMA is meant to create a process (starting in 1972 when the statute was passed) that entices coastal states to develop coastal management plans. These plans become the basis from which states manage their coastal resources. Prior to the passage of the CZMA coastal states may or may not have had a coastal management planning process at the state level. Rather, many of the land use decisions about coastal areas often were delegated to local municipalities leading to inconsistent management decisions; Town A might provide for programmatic coastal development to protect sensitive coastal resources, while Town B might have no coastal development planning, rather combining coastal development with inland land use planning.20 So even though the CZMA provided wide latitude towards states in the development of those programs (see the policy goal language above), any programmatic approach to coastal management was a significant leap ahead of what existed before the CZMA. Operationally, the CZMA works in the following way:

20

This can lead to an inconsistent use of coastal resources, for example not considering the potential for increased flooding and storm damage risks in the building standards for coastal properties. In addition, coastal land often is quite sensitive to disruption (for example sand dunes that serve as important habitat and protection from coastal erosion). As such special consideration of coastal land is often an important part of ‘protecting’ coastal resources.

Page 37 of 103 • • Coastal states submit coastal management plans to the National Oceanic and Atmospheric Administration (NOAA). NOAA reviews those plans to ensure they are in conformance with the federal standards (essentially to ensure the plans are programmatic in identifying and managing coastal resources in the state). If the plans are in conformance, then NOAA approves the plan.

Approval of the state coastal management plan triggers the two important carrots of the CZMA above. First, approved plans must then be implemented by the coastal states, and the implementation process can be expensive. The CZMA provides federal funds to the coastal state in order for the state to implement its coastal management plan – thus there is a financial carrot of federal dollars. Second, federal consistency is offered to approved coastal management plans, which requires the federal government to consider the impact of its activities on coastal state priorities outlined in their management plans, and where possible, ensure those federal activities do not negatively impact stated coastal priorities. Consider the following figure as a starting point to explaining federal consistency in context:

In the figure, the large red “X” located in federal jurisdiction represents a potential federal project: say an offshore oil and gas extraction platform. The purpose of the project would be to drill in federal waters into the ocean bottom below and begin extracting oil and gas deposits. One of the potential risks in drilling for oil and gas can emanate from the drilling rig system; a failure in the system can cause an oil leak similar to what occurred in the Gulf of Mexico in 2010 with the BP Oil Spill (Deep Horizon).

Page 38 of 103 Under the CZMA federal consistency requirements, the federal government is required to consider, in addition to other oil and gas leasing requirements, the potential impacts of drilling in this area on nearby coastal state resources. So in this case the federal government would have to look at the nearby coastal state’s management plan (assuming the coastal state had an approved plan under the CZMA) and consider the potential impacts of a spill on different aspects of the coastal states resources (the small red “X’s” in the state jurisdictional waters and coastal uplands). Under the example provided immediately above, we can consider how different coastal state priorities can impact the extent of federal review (and potential responses) under the federal consistency requirements of the CZMA. For example, Coastal State A might have a coastal management plan that prioritizes the purity of its water quality and coastline to highlight its reliance on coastal tourism (think Florida). The federal act of permitting an offshore oil and gas project near a coastal state that highlights the preservation, protection, and enhancement of its coastal resources can directly conflict with the states coastal state priorities. On the contrary, such a project might have less impact on a coastal state that prioritizes oil and gas development and, in fact, has a number of such projects already occurring within the 3-mile jurisdictional limit of the state (think Texas). In this situation the proposed federal project is more harmonious with coastal state priorities and thus unlikely to conflict with those priorities. In the first example of Coastal State A, the proposed federal plan is likely inconsistent with coastal priorities. As such, under the CZMA, the federal government must, to the extent practicable, modify its proposed plans to ensure the coastal state priorities are not jeopardized through federal action. To make the point clear, federal consistency under the CZMA forces the federal government to rethink how it uses its own sovereign property when that use has the potential to conflict with approved state coastal priorities. This is powerful because it represents an instance when the notion of supremacy under our traditional notions of federalism is reversed, leading some to refer to this provision of the CZMA as a reverse supremacy clause.21

Policy Implications of the “Carrots” under the CZMA
The two federal carrots identified under the CZMA – funding and deference – have both impacted coastal management policy significantly in the United States. In the text you are provided with a discussion and interpretation of the case law development of the
21

Under traditional notions of supremacy, federal law generally trumps state law in most respects when those laws are in direct conflict with one another. Thus, ‘reverse’ supremacy is meant to suggest the situation where state law trumps federal law under a direct conflict. Of course, under the CZMA, it is a federal agency (NOAA) that ultimately determines if there is a ‘direct’ conflict between the federal action and the approved state coastal plan. This is not the same kind of objective third-party review we expect when we seek judicial review of a question of law (like the application of the Supremacy Clause to a dispute between state and federal rights).

Page 39 of 103 CZMA, including interpretations of such things as “federal consistency” in context; I will let that material speak for itself in terms of aiding in your understanding of the CZMA as a legal framework and the role case law has in interpreting that legal framework. What I want us to consider here is the policy implications that arise from these two carrots in terms of coastal policy. Consider that with the passage of the CZMA, all coastal states have now developed coastal management plans that are in compliance with federal standards. The fact that every coastal state now has a set of management priorities relating to coastal resources is significant, particularly if we compare this to the lack of comprehensive coastal planning that existed prior to the CZMA’s enactment. Massachusetts now has an Office of Coastal Zone Management that implements (and further develops) integrated coastal management based on the planning that was originally done under the CZMA.22 California has its coastal management planning incorporated into statutory language under its State Coastal Act and implemented through the California Coastal Commission, an agency created to help implement coastal planning that was developed, in large part, through the financial inducements of the CZMA.23 Most coastal states have similar examples. The fact is the CZMA’s financial inducements were largely successful at moving coastal states towards a more uniform set of management standards for coastlines. As such, the CZMA represents an important example of how policy goals can often be obtained by understanding and working within legal frameworks. As a matter of federalism, there was little direct authority the U.S. Government could claim to force coastal states into developing coastal management plans that incorporated federal standards. So instead of (1) doing nothing, or (2) violating constitutional principles of federalism, Congress created incentives (carrots) through the CZMA; history has proven that such enticements are actually effective means of accomplishing policy goals – an important take-home message when thinking about policy development in the face of legal framework hurdles. From an implication standpoint, we understand that moving forward in developing coastal policies, the CZMA has helped provide a starting point; all coastal states now have coastal management plans that provide a foundation for coastal policy advancement. The other important policy implication from the CZMA derives from the second carrot, federal consistency. We know that federal actions that have the potential to impact approved coastal management priorities must, under the CZMA, be reviewed prior to the federal action, and if the federal action can be reasonably altered to protect the coastal priority, then it must. This ‘reverse’ supremacy creates important policy directions for coastal states; knowing the coastal state priorities have a kind of ‘trump’ over inconsistent federal actions changes the policy landscape. Prior to the CZMA coastal states had little reason to believe their priorities would trump federal priorities; the federal government was generally free to act upon its jurisdictional waters without much concern for the impacts of its action on coastal state resources. However, this is no longer
22 23

http://www.mass.gov/czm/ http://www.coastal.ca.gov

Page 40 of 103 the case and it presents an important change in the policy landscape that was heretofore defined by legal principles of federalism.24 Understanding this change in the policy landscape because of the CZMA provides a deeper way of considering the policy environment when we think about coastal management choices. END OF SECTION.

24

A clear example of this is provided in the McGuire reading on coastal planning and federal consistency: http://works.bepress.com/chad_mcguire/34/

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Lecture 5: Management of Coastal Resources Development, Wetlands, Sea Level Rise, Takings Introduction
In the preceding materials we discussed the Coastal Zone Management Act (CZMA) and discovered, from a policy standpoint, the CZMA strives to create a uniform system of guidelines for the rational management of coastal resources across the United States. With the framework of the CZMA under our conceptual ‘belts,’ we now move on to a more detailed consideration of the management of coastal resources within the CZMA. Specifically, we will be looking at some of the characteristics of coastal resources (including the dynamic nature of coastlines and the more recent phenomenon of sea level rise), how those characteristics are valued, and the role of legal frameworks (in particular takings challenges of government regulation) within this more detailed review of coastal resources. To help place this review into context, we can identify a few important characteristics about coastal areas: • First, we must understand coastal areas are dynamic places by design. We know that coastlines are impacted by a number of natural forces. Gravity exerts its influences on the tides creating a constant ebb and flow of water along the coast. Storms move along the temperature gradients created between sea and land making coastlines susceptible to strong winds, heavy rains, and other forces of nature. Many coastal areas are made up of sand and other erodible substrate that provides for a constantly changing and dynamic environment. Also, coastal areas are generally at low elevation allowing for the storms mentioned above to intermittently flood these areas. With the increased observance of sea level rise, the lowest lying coastal areas are increasingly susceptible to these forces meaning many coastal areas create concerns for government in terms of human health and safety. Second, we can acknowledge that many coastal areas represent places of high demand, making the property rights of coastal areas a key consideration in the policy of managing coastal resources. The most highly valued real estate markets exist in coastal areas, and this value is closely tied to other important policies like property taxes and thus government revenues. The demand for living along the coast and the high property values that exist there are important considerations when thinking about the management choices for these coastal resources. Government coastal management choices are constrained by both policy choices and legal frameworks. Policy constraints include the desire of government to capture the benefits of demand and high property value that attach to coastal areas; government policy options that harm either demand or property value tend to be discounted because of the effects they can have on other government

Page 42 of 103 priorities (tax base, social welfare spending, etc.). Legal framework constraints derive from the U.S. Constitution, particularly the Fifth Amendment prohibition against the taking of private property without a public purpose and paying just compensation. Thus, where government wants to regulate coastal areas, the regulation of those areas must be viewed in light of regulatory takings challenges where the regulation deprives the private landowner of all viable economic use of their property. In this section we will pay close attention to the characteristics of coastal areas identified above. Through a deeper understanding of these characteristics we can develop insights into the variables that influence coastal management policy. In particular, our focus on legal frameworks will help inform the limits on how certain resources within the coastal zone are managed, and this will in-turn help us better comprehend the association between legal landscapes and policy directions.

Revisiting Property Rights and Coastal Resources
Recall the following figure distinguishing property rights based on the two characteristics of divisibility and excludability:

The figure was used to help explain the different kinds of property rights encountered at the coastline; it was used in the context of understanding private and public rights at the shore. In that earlier discussion we noted that the public rights to the coastline were sometimes in conflict with private rights in the same area. Here we are looking at private rights mainly through the lens of development and property rights along the

Page 43 of 103 shoreline; those who have private rights in the shoreline are often most interested in the ability to develop those rights, for example the right to build on their coastline property.25 The desire to develop along the coastline is driven primarily by demand for coastal living, and that demand in-turn creates incentives for local governments under the premise that increasing population is desirable (including the associated benefits of increased tax revenues, etc.).26 However, the dynamic nature of the coastline also presents hazards for coastal communities. Recently the frequency, duration, and intensity of storms have increased the risk of living along coastal areas. This risk traditionally has been mitigated through a mix of private and public insurance to, effectively, subsidize living along the coast.27 With both private and public insurance of coastal areas waning in recent years, the ability to shift these risks of loss has also waned; today more of these risks are being internalized by coastal municipalities through the expenditure of local resources to mitigate the risk and loss of coastal development. Thus, incentives for government to internalize the new risks associated with climate change

25

One of the main reasons for advancing this right to develop is the valuation that goes along with such a right. As mentioned earlier, coastal property is generally in high demand, and much of that demand stems from the desire to live along the coastline. Thus, the ability to develop coastal land (or redevelop as the case might be) is a critical right that many private landowners (and coastal developers) cherish. Any government action that limits this right to develop is often seen as a direct conflict to this preference for development.
26

The lure of increased tax revenues from development in coastal areas is particularly enticing to coastal communities where the property is often used intermittently by the owner as a second home or during certain times of the year (summer for example). The owners of these “summer coastal homes” often pay a premium in property taxes because of the valuation of the home. However, they often do not use many of the public services from which those property taxes are derived. For example, they are not full year residents of the area meaning their potential use of public resources (police, fire and rescue) is diminished by the time they are not physically proximate to the area. In addition they often do not have their children (if they have children) attending the public school system. Thus the funding from their property taxes for these purposes can be redistributed to support others in the community.
27

These subsidies do not include the additional subsidies provided by government over past years for the development of infrastructure along coastal areas (roads, sewer systems, utilities) that encouraged the settlement and development of coastal regions. Today many of these subsidies have been halted meaning undeveloped coastal areas must develop this infrastructure through other means. Reasons for removing this government subsidy include the threats to coastal communities from the increasing frequency, duration, and intensity of coastal storms as well as the continually developing scientific consensus on sea level rise.

Page 44 of 103 (particularly sea level rise and increasing coastal storms) have motivated a change in policy from development to the protection of undeveloped coastal areas.28 When government moves to protect coastal areas, that protection usually involves a change in how private property rights are managed. For example, government may decide that undeveloped tracts of coastal property should not be developed, and thus passes a regulation that prohibits development of certain coastal land; prior to this regulation coastal land could be developed. Putting on our legal frameworks hats the question, then, is whether or not the change in government policy is one that is lawful?29 We may agree that changes in circumstances (a more disruptive coastal zone) may justify a new policy direction (more restrictive development of coastal areas), so there may be agreement on the goal of the new policy direction. However, we must look to the means being employed to achieve this goal and determine if the particular means runs afoul of our legal frameworks.30

28

The rationale for the protection of coastal areas is multifaceted. Government certainly wishes to protect those who live near the coastline from the impacts of sea level rise. In addition, government wishes to protect those who live inland but might have a greater chance of being impacted by coastal development (coastal development can change the normal landscape allowing coastal storm inundation to reach further inland). Finally, government is beginning to realize the importance of maintaining coastal attributes that can be impacted by sea level rise. Thus, preventing development along the coastline can provide a buffer zone that will allow for coastal landscape attributes to migrate inland over time as sea level rises: allowing that development can prevent coastal attributes from moving landward.
29

Consider, for example, that the private landowner will likely loose a lot of value in the coastal land when the property, via government regulation, becomes undevelopable. It may be the private landowner paid a premium for the coastal land under the valid premise that the land could be developed: the state of the law at the time the land was purchased. However, the change in the law preventing development now impacts the value of the land and, without government intervention, the financial loss is solely borne by the private landowner. We can extend this example to a developed piece of coastal property that is now, post regulation, prohibited from redevelopment; for example, the property cannot be ‘improved’ in any way that increases the value or functional use for the private coastal landowner. In both cases the private landowner is incurring the costs of the new regulation.
30

It is important to note that government has other choices beyond banning development of coastal areas through regulation. For example, government can choose to purchase coastal land outright through its power of eminent domain (an expensive option depending on the extent of the purchase program). Or, government can choose to place conditions on coastal land, for example creating a special set of rules that apply to the conditions of development in coastal areas, like having to either abandon or move the dwelling if and when sea levels approach, something often referred to as a rolling

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Let us assume the default measure of protection to coastal areas will involve government passing a regulation that limits development of coastal land. We can then consider variants of this kind of policy response and see the difference our legal frameworks analysis has on these policy approaches.

Applying Legal Frameworks to Coastal Regulation
To begin, we recall our hierarchy of laws copied here for reference purposes:

Regulations created by government sit at the bottom of our hierarchy of laws. Thus, any such regulation, even if carrying out a statutory (law) intention, will be found invalid if that law/regulation is in direct conflict with a constitutional principle. In situations where private coastal landowners are challenging a government regulation that impacts their private property rights, we are dealing with an issue between the Tenth and Fifth Amendments to the U.S. Constitution. The Fifth Amendment of the U.S. Constitution includes within its language a prohibition against government actions that result in the ‘taking’ of private property without a public purpose and the payment of just compensation. Thus, if the government conduct is considered a taking, even if that conduct does not emanate from a government intention to take the land, then the government can only engage in the action if there is a public purpose supporting the action and government pays the private landowner just compensation for the ‘taking.’ So a government regulation that is intended to prevent coastal development in order to protect humans and coastal resources may indeed be considered a ‘taking’ (in this case a ‘regulatory taking’) if the government action meets easement. These options are discussed in greater detail in the McGuire reading in this section.

Page 46 of 103 the legal requirements for a taking. The question that we must answer is what acts support the legal requirements of a taking? In the readings you are given summaries of case law to help provide a context for answering the question above: what acts support the legal requirements of a taking?31 The key in answering this question is to determine the link between the regulation and constitutional principles that might support the government action; if the regulation is not linked to a constitutional principle then it likely fails when compared to the Fifth Amendment constitutional protection. To begin we can recall the spectrum between takings and police powers copied here:

Recall that the spectrum above gives us a few pieces of important information when considering the role of legal frameworks in establishing the impact of government actions on private property rights. Government actions, including the development of regulations, that are clearly within the traditional Tenth Amendment roles of government (providing for the health, safety, and welfare of citizenry – the police powers) are ‘anchored’ in a constitutional right. Thus, if the government action is clearly within its police powers, then the action is supported by a constitutional power. This is an important first inquiry because it established the relative hierarchy between the government action and the impact it has on private property rights. Remember, we know that private property rights are protected by the Fifth Amendment to the U.S. Constitution, thus there are constitutional rights at-stake when government regulation affects private property rights. We do not know the characterization of the government conduct; if the conduct is well within the Tenth Amendment police powers, then the legal
31

The McGuire/Hill reading provides an excellent background of takings jurisprudence to help establish a contextual understanding of the historical development of regulatory takings law.

Page 47 of 103 analysis is one of comparing constitutional rights. Alternatively, if the government conduct is outside of constitutional powers, then the regulation stands subservient to the constitutional right protecting private land from government action under our hierarchy of laws. If we were to take the takings cases mentioned in the readings and overlay them onto our spectrum of constitutional rights above, we would likely see something like the following:

Collectively these cases help us understand the relationship between three important factors in the context of legal frameworks: (1) the characterization of the government action; (2) the impact of the government act on the private landowner; and (3) the purpose of the government action (what policy goal is being advanced?). What follows is a summary of the three cases mentioned above in context to help draw out the major principles of takings analysis to coastal resources: • Loretto is a clear example of what the courts have termed a categorical taking. The New York ordinance (a city law) allowed for private cable companies to attach boxes to the physical structure of privately owned buildings. The decision indicates that any government action resulting in a permanent physical occupation of private property – no matter the purpose – is a categorical taking requiring both a public purpose to justify the action, and when that public purpose is shown, requiring just compensation be paid to the private landowner for the continuing occupation.32 Because permanent physical occupations are always

32

If the government regulation fails to show a public purpose, then the result should be to find the action unsupported under the eminent domain power of government. Under

Page 48 of 103 found to be takings, Loretto sits clearly in the red extreme of our spectrum in the figure above; the government reason for the occupation, even if it is a very good reason well within Tenth Amendment justification, will still be found a taking. • Tahoe Sierra is an example of a government regulation with a purpose clearly within the police powers of the state and carefully written to be impermanent, i.e., for a limited duration of time. Due to the reduced water quality of Lake Tahoe brought on in large part by increased development along the lake, government officials enacted an ordinance (city law) that placed a moratorium on development for a period of time. The purpose of the ordinance was to protect water quality, and the duration of the ordinance was limited. Under this situation the judicial branch found no violation of the Fifth Amendment, indicating the ordinance was reasonably tailored to advance a police power (Tenth Amendment power), and placed limited duress on private property rights because there was a future expectation of development (development was stalled under the ordinance but not prohibited forever). Thus, Tahoe represents a clear example of a government action that alters private landowner expectations (barring development), but does so for a clear Tenth Amendment purpose, and also limits the impact on the private landowner. Government acts of this kind are clearly within the green section of our spectrum. Lucas presents the third kind of regulatory takings scenario that, like Loretto, presents a different kind of categorical taking. In this case South Carolina enacted a moratorium on development of coastal barrier islands in the aftermath of a hurricane to protect against future damage, a clear police power rationale for the regulation. The moratorium resulted in a prohibition on development for an indefinite period of time (unlike Tahoe Sierra).33 The judicial branch ruled that in cases like this, a government act that deprives a private landowner of all viable economic use of their property is a categorical taking. As noted in the figure above, Lucas does not fit cleanly within or outside a regulatory takings finding. Rather, the question of whether a takings has occurred is dependent on a close inquiry of the facts; since those facts are not objectively clear in many instances, Lucas is placed in the yellow box area (slightly in the red), suggesting whether a taking has occurred will be highly dependent on the facts of the case. And the inquiry is whether, under the facts, the government act results in deprivation of all viable economic use of the property; where this standard is shown a regulatory taking has occurred.

such a finding the physical occupation should cease (the regulation allowing for the boxes to be placed on the buildings revoked).
33

This is not to suggest an accurate timeline between these cases (for example, Lucas occurring after Tahoe Sierra), but rather to highlight the factual/legal (facts that are legally important) distinctions between the cases.

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Placing Takings Jurisprudence Into A Policy Context
So we can step back from our in-depth review of case law impacting coastal land use regulations and think about the policy context in which all of this material exists. To do this I want to bring forward those 3 characteristics of takings law mentioned above: (1) the characterization of the government action; (2) the impact of the government act on the private landowner; and (3) the purpose of the government action (what policy goal is being advanced?). If we look closely at how the courts are viewing takings challenges, we can come to some understanding of the impact these legal frameworks are having on policy options that include controlling coastal land use. In deciphering takings law, the purpose and characterization of the government’s conduct are key considerations. The essence of this characterization is looking at the legal basis upon which government is claiming its right to regulate. Where government is claiming a right based on a fundamental police power (the purpose), then it is more likely the government action will be on par with takings protections (two constitutional provisions will be pitted against one another). Alternatively, if the government conduct cannot be characterized within its constitutionally protected police powers, then the act will more likely lead to a constitutional violation. From a policy standpoint this matters because it highlights the importance of justifying coastal resource protections in fundamental police power parlance. Of course, if those protections are far removed from imminent threats (say protecting against future sea level rise by prohibiting development today), then there is a greater chance, on balance, that the regulation will be deemed unjustified in the face of the immediate impact on private property rights. So this really comes down to a policy lesson about proximity of harm in relation to the interests at-stake. Although not explicitly stated in any U.S. Supreme Court opinion on takings as a fundamental rationale, the question of timing becomes an important consideration when thinking about policy directions. All things being equal, it seems that policy alternatives seeking to restrict coastal land use will more likely pass constitutional scrutiny when the harm being protected against is imminent; for example, the harm to water quality to Lake Tahoe was ongoing and thus the argument that further development would immediately harm water quality seemed reasonable. The impact of the government act on the landowner is also an important variable from a policy standpoint. Lucas helps us understand impact in context; when the economic impact of the government act is so severe as to remove all viable economic use of the property, then a taking is likely found. Thus, policy instruments should take heed of this economic impact and ensure that government conduct stays below this threshold when regulating private land use for the protection/benefit of coastal resources.

The Rolling Easement Application
Let us put these principles towards an application. Earlier a rolling easement as a kind of land use overlay was mentioned as a land use planning technique that protected coastal features against future sea level rise. The premise is quite simple: current land use

Page 50 of 103 patterns are allowed to occur, but those patterns cannot include the holding back of the tide (say through ‘hard armoring’ techniques such as building seawalls, revetments, and other hard structures). If tides move landward over time (for example, through sea level rise), then one must either abandon their property (when the tide approaches), or move their property landward to avoid the encroaching sea. As a policy instrument, the rolling easement protects a number of coastal resource interests, both today and tomorrow. The coastal landscape is protected, including all of the important ecological assets of that landscape, by ensuring coastal features can migrate landward and will not be hindered by armoring structures. Present coastal development is also protected to the extent that those who are willing to develop and live in coastal areas today do so understanding the limits of their development. The public is also protected as the easement places the costs of coastal storms and sea level rise on private landowners rather than having that burden fall on the public. In sum, there are a number of advantages to the rolling easement from a public policy perspective. From a legal frameworks perspective the rolling easement also shows promise. First, the easement does not prohibit development of coastal property; coastal landowners can develop their land but with restrictions. The restrictions on development focus on transferring future risks to the landowner, for example by preventing hard armoring of the area around the private land. By limiting (but not prohibiting) development, the restriction does not deprive the coastal landowner of all viable economic use of their property. In addition, the restrictions are forward looking; so long as sea level rise does not occur, the condition of allowing the sea to migrate unabated inland also does not occur. Only when the sea is actually rising does the condition of allowing the migration into the private property get triggered. Thus, there is a complementary nexus between the purpose of the regulation (protect the public and coastal features) and the proximity of the harm (the coastal landowner only has to deal with the impact of the regulation when the harm is occurring). The overlay of legal frameworks on policy options like the rolling easement example here provides some opportunity for analyzing different aspects of the law as they relate to coastal planning. The merits of the rolling easement (described above) in relation to legal limitations on land use regulation help us see the importance of the law when it comes to policy; the law can inhibit policy directions, but it also can help identify policy pathways, like the rolling easement, that achieve policy goals. It is important to note that the example above has been simplified, as has been the discussion of takings law, in order to provide you with a general context for understanding the concepts; we don’t cover all of the nuances in takings law nor coastal land use planning that can be discussed, we simply cannot without devoting an entire semester to the topic. However, you have been given substantial leads for more in-depth analysis in the readings and associated references within the readings. Those wishing to delve into this subject in greater detail are encouraged to do so. For purposes of this course, it is enough that you understand the interaction between significant legal structures (particularly the Fifth Amendment Takings Prohibition) and coastal resource planning.

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Implications of Lucas and the Valuation of Coastal Resources
From a coastal management perspective the Lucas case is incredibly important, mainly because it forces us to think about a fundamental question: how are we going to value our resources, and in valuing them, who is going to take on the responsibility of managing those same resources – the government, individuals, or a mix of the two? In answering this question, I have placed below a summary of valuations I have used in other courses (specifically environmental policy and principles of sustainability); we really need to think about total valuation to answer this question, and total valuation can be summarized as follows: So much of what we do as a society is based on how we value things, or maybe which values we hold most dearly. In the United States, we generally represent our values (at least privately) through market-based transactions. These transactions may, or may not, include all of the values inherent in a resource. Consider the following example posed as a question: what is the value of a wetland? To answer this question, classical economics would likely ask what is the willingness to pay for this wetland on the open market? In a private market, one might be willing to pay an amount based on the development potential of the wetland (the same kind of analysis one would do for a private piece of land that could be developed). Does this direct analysis capture all of the values inherent in the wetland? It likely depends on whom you ask, and may also be dependent on other factors (both scientific and social) that may attach to that particular piece of land. The following questions may highlight some of the issues surrounding valuation of the wetland example from above: • • • Where is the wetland located? (If it is near Manhattan, then it may have significant development value.) Can the wetland be filled to accommodate development? (If the wetland cannot be filled, then maybe it has less value, especially for development purposes.) What kinds of creatures inhabit or otherwise use this wetland? (If there are endangered species using this wetland, then maybe there are reasons to protect it – other values to consider.)

The point here is there are a number of factors that can easily change our analysis of the value of the wetlands, even when we are only considering its direct value. However, there are other categories of values in wetlands. They may be summarized by the following equation: Total Value (TV) = Direct Values (DV) + Indirect Values (IV) + Non-Use Values (NuV) Direct Values

Page 52 of 103 Direct values are meant (generally) to represent those values expressed above in a private market-based transaction. We can easily identify these values through our willingness to pay for the value in question. To reiterate, for our wetland, the direct value is most likely the value of the wetland for development.34 Since direct values are usually determined through a market transaction, they are generally the easiest uses to objectively value. For instance, if you wanted to know the direct value use of soybeans as food (or recently fuel), you can check its current commodity market price. Others have described this value, as related to resources, as the provisioning services of the resource since we are determining the relative value of the resource in terms of its capacity to provide humans with some other use: wood from trees (original use) transmuted into building material or furniture (some other use). Indirect Values Indirect values are those values that are not directly traded or expressed on an open market (at least in most instances), but are critical in other respects. In the wetland example, we might argue the wetland provides numerous indirect values outside of being developed for land. Indeed, scientific research has indicated wetlands are important regulators of water quality; they absorb many of the chemical compounds and organic matter that can lead to pollution and eutrophication (nutrient enrichment) of water bodies. Wetlands also serve as important habitat (in many areas) for numerous aquatic species, including commercial fish species. Now, depending on where those wetlands are located, the indirect value can be substantial. For instance, New Your City obtains its water from a reservoir that is surrounded by natural wetlands. Those wetlands maintain the quality of the water, saving the NYC substantial sums in water treatment costs. These indirect values, sometimes called regulating services, are important components of the overall value of a particular system. Non-Use Values Non-use values are those values we ascribe to a resource, but are not necessarily represented in a market transaction, or easily identified as regulating services (they do not necessarily provide us with a fungible natural service like maintaining water quality). Rather, non-use values are those values we come to appreciate from a resource strictly from an aesthetic or cultural standpoint. Continuing with the wetland example, we might enjoy the ambiance created by a wetland; they represent nature, and create a unique scenic quality with the arrangement of water birds (ducks, geese, loons, etc.), as well as the unique plants of wetland resources. While we might not regularly engage in market transactions for these kinds of values, they are entirely real, and many times we can express our general willingness to pay to protect these kinds of values (have you ever donated to a nature organization to aid in the survival of the polar bear, dolphin, or
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However, it is important to note certain market participants, such as the Nature Conservancy, have used direct market transactions as a means of protecting land as open space, showing a preference for land in its natural state.

Page 53 of 103 similar animal?). Sometimes non-use values are discussed as cultural services, providing us with a sense of place and relevance, without necessarily enriching our wallets. In economics then, we can begin to seek a language by which we identify and account for the various values of a system; some values are transparent and easy for us to identify (like direct values of the system); others are less transparent, but still offer importance in how we perceive the world (such as non-use values). The key, I believe, in having an honest discussion about sustainability is to identify all relevant values of a resource. Without doing so, we are failing to articulate the relative costs and benefits of a particular action, which means our actions may be based on less than complete information. Benefit-Cost Analysis As a final point of economic consideration, let us take a moment to discuss benefit/cost analysis, or BCA. Imagine we must choose between maintaining the wetland area around the Catskill, NY reservoir or filling and developing the wetland to provide housing (which we can assume is in high demand). Which is the better choice? Obviously, we must engage in some discussion of the costs versus the benefits of the proposed actions. How will we identify these costs and benefits? Consider our equation above about identifying values: Total Value (TV) = Direct Values (DV) + Indirect Values (IV) + Non-Use Values (NuV) If we fail to consider all of the values associated with the project, then our cost/benefit analysis will be flawed (it will not give us an accurate reading of costs and benefits because not all values are being used in the analysis). So, we see BCA may be an important framework by which we can analyze a decision, but it has limitations. One major limitation is it can only analyze the relative costs and benefits as identified by the person making the analysis; if the methodology in the analysis does not include a total valuation approach, then we may come to a decision about a resource that is incomplete. Consider the concept of total valuation in relation to coastal resources. The dynamic nature of the coastline makes it subject to a variety of values in each category of out total valuation technique. How might we think about coastal resources from this total value accounting methodology, and how does such a methodology impact our larger analysis of coastal policy decision-making? These are difficult questions to answer, and require a great deal of forecasting into the future when making decisions about the present use of coastal resources.35 While we do not have complete answers for these larger questions,
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Consider sea level rise and land use planning as one example. If we engage in policy decisions today that internalize the threat of sea level rise, then we are making decisions about resource allocation that may or may not come true; even the rolling easement redistributes current resources by forcing coastal property owners to fully internalize the future risk of property abandonment (for example by preventing armoring of the coastal

Page 54 of 103 particularly questions requiring the ability to ‘see’ into the future, we can identify the capacity of policy instruments to be developed in such a ways as to balance the interests of today and tomorrow (like the example of the rolling easement) without running afoul of legal frameworks. Make sure you carry these concepts forward as we continue our exploration of ocean law and policy. END OF SECTION.

property against rising seas). This impacts valuations of that coastal property today, and some might argue that such forecasting is harmful in this context.

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Lecture 6: Offshore Resource Development State and Federal Rights, Oil and Gas Development Introduction
In this section we begin to move our exploration of ocean policy and law beyond the coastline and into the offshore areas of the ocean. Until now our focus has been primarily on the coastline; we have looked at legal frameworks impacting public and private rights in the coastal zone, and much of that review has focused on values associated with property rights to the shoreline (the physical space) as well as rights of access to the shoreline, both public and private. A visual representation of this initial focus is presented here:

We now begin to explore a different set of values, one of ownership rights to the resources contained within the ocean itself. In this first exploration our focus will be on competing government (public) rights to resources, in this case state versus federal rights in ocean resources. Our examination will cover two aspects of these rights: (1) property rights to the physical space of the ocean; and (2) ownership rights to the resources contained within that physical space. A representation of our new focus (in comparison to our previous focus) is visually presented here:

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What we should come to understand is that policy is dynamic and ever evolving, meaning that a change in preferences often follows new information. This is particularly true when new information leads to opportunities that motivate new policy directions. A clear example is represented in the history of state and federal rights in ocean waters. As technological advances have increased our capacity to reach and extract resources within the ocean, actors (both public and private) have come forward to claim rights to those resources. From the public perspective, coastal states and the federal government have been at odds with one another on how best to share these new opportunities. As noted in the text, the discovery of oil deposits just offshore of coastal states (particularly California) opened up new opportunities for revenue generation. As such, both the federal government and coastal states had new reasons to claim ownership rights over the ocean. Both public entities wanted to develop new policy directions that included a claim of entitlement over marine resources. The question, as we have come to see, is what impact do legal frameworks have on the competing federal and state claims to the same ocean resources, and adding a historical/political context to this question, how did these claims ultimately resolve to bring us to our current understanding of state and federal rights – essentially shared governance – of coastal resources. As we explore the historical tidelands controversy, and then discuss current issues in the development of ocean resources, consider the role legal frameworks play in this discussion, and then overlay on this consideration the ways in which policy directions can be taken to sidestep the law in certain instances. Collectively the historical part of this section will help us better understand policy options today with regards to offshore resources.

The Tidelands Controversy: From History to Policy Lessons
The Tidelands Controversy is a prime example of the interactions between policy and law as information changes. Once it became clear that the oceans contained valuable resources and, importantly, that those resources could be extracted (i.e., the value from the resources could be captured), governments began to develop policies supporting the capturing of that value. What is interesting to note at this time is the legal basis for assigning the rights to the resources between governments (state and federal) was not

Page 57 of 103 wholly settled; thus, the lack of legal clarity provided a ‘rules void’ that allowed both coastal states and the federal government to claim ownership rights.36 For our purposes we can identify the policy implications of unsettled law on a subject; when the law is unsettled the rights between the parties is unknown. While a lack of clarity on respective rights can create policy opportunities (windows where policy can be developed to take advantage of the ambiguity), the lack of clarity can also make it difficult to discern clear policy directions. Understanding this point is an important part of understanding the relationship between law and policy; while legal frameworks (like constitutional protections) can seem to limit policy options in many circumstances, those same frameworks can also provide important guidance on policy directions, essentially helping one discern the validity of different options. In order to place the controversy into a clear policy perspective, the following factual summary of major points (as a timeline) is offered here: • • Early in our history, states inherited title to the coastal regions (submerged lands) as part of their designation as colonies.37 After independence from Britain, the subsequent territories to receive statehood (think of western expansion) were given the same rights as the previous colonies to receive statehood under our constitution (known as the equal footing doctrine). This included the same ownership interest in coastal lands as previous states (however that ownership interest may be defined).

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Consider the ‘policy environment’ in which the learning associated with offshore resource development was occurring. Terrestrial oil production was fast replacing older energy sources (like coal), and thus the demand for oil was high. Private investment discovered oil deposits in just offshore of coastal states. With a lack of legal frameworks to manage oil extraction along the coastline, private investment began to seek the rights to extract the resource, but from whom? In most cases coastal states took the lead in claiming ownership rights, providing leases to extract the oil and also demand taxes on the production. As production expanded, revenues from leases and taxes increased to the point the federal government determined the value was significant enough to become involved. The question of property rights ownership in the submerged lands was unsettled between state and federal government, leaving competing claims of public ownership to be resolved in a court of law.
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These early grants came from the sovereign (King/Queen) of England and represented a common law doctrine that the sovereign owned all submerged lands within the kingdom. Since the territories (ultimately states) were the equivalent of the sovereign, the legal concept is that the states (at least those existing before the federal government came into existence) were the rightful owners. (Of course this creates a distinction between coastal states that existed prior to the federal government coming into existence, and coastal states that were created after the federal government existed.)

Page 58 of 103 • In the 1930s, oil began to be discovered offshore in many states. This discovery led to fast development by private industry. Since the states claimed ownership, each state was leasing the right to extract oil, and receiving large sums of revenues for the leasing licenses. Around the time of WWII, the U.S. federal government was in need of new sources of income (heavily indebted). One solution to increase income was to claim ownership over the coastal areas in all regions of the U.S. This meant having to claim a superior interest to that of the states. The states fought the claim in both the courts and Congress. Congress attempted to grant total land ownership to the states, but then U.S. President Truman vetoed the bill, claiming the issue was a legal matter currently before the U.S. Supreme Court.38 In 1947, the U.S. Supreme Court decided a case of submerged land ownership between the U.S. government and California (the implications would be similar for most states). The Supreme Court decided in favor of the U.S. government, stating while the states certainly have a property interest in the submerged lands, the U.S. government (essentially through constitutional provisions of commerce and national defense) hold a paramount right (something that goes beyond mere property ownership) in submerged lands. As such, the U.S. government had a right to regulate and control submerged lands seaward of the mean low water mark, and this included the rights to resources in the submerged lands.39

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So here we have an example of the political/policy aspects of the debate. When the legal frameworks are not clear, we can see how political interests evolve to help shape the debate. The interest of the federal government is to obtain ownership rights. The interests of the coastal states (represented by congressional representatives) are to maintain ownership rights. When the interests between the parties are not clearly settled as a matter of law, then we can see how branches of our government operate in an attempt to ‘capture’ rights by settling the law in their favor. For the coastal states, the legislative branch attempts to pass a federal law confirming coastal state ownership. For the federal government, the executive branch (via the President) vetoes the bill and relies on a favorable interpretation from the judicial branch. A fine example here of how the United States system of government operates from the viewpoint of policy. Can you begin to see how important legal frameworks can be in settling conflicting interests?
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Consider this case an example of the Supremacy Clause application by the U.S. Supreme Court Justices. Recall our initial discussion of the Supremacy Clause in relation to the Coastal Zone Management Act (CZMA). Under a hierarchy of laws analysis, the federal government has superior rights over state government with respect to specifically enumerated powers of the federal government (powers that are explicitly identified in the U.S. Constitution); commerce and national defense are two examples of these enumerated powers of the federal government found in the text of our U.S. Constitution. Also note that the justices deciding this case are not immune from the political aspects of the legal question under consideration. When legal frameworks are not clearly defined,

Page 59 of 103 • In 1953, the U.S. Congress passed a federal law known as the Submerged Lands Act of 1953. The purpose of this law was, essentially, to overrule the U.S. Supreme Court opinion and grant to states full ownership and use of submerged lands up to 3 miles from shore (or otherwise their historic boundaries).40 To this date, the Submerged Lands Act remains the main law regulating ownership and resource development, giving the states these rights to ~3 miles from a ‘baseline’ created at the shore. It is interesting to see today how the offshore drilling issue is becoming vibrant again. Under the CZMA, most coastal states have developed management plans that limit oil development within their jurisdiction (or otherwise protect against climate change and, thus, indirectly limit carbon redistribution from oil production), and this limitation continues into federal jurisdiction under the federal consistency requirements of the CZMA.

Now that we have a sense of history related to the Tidelands Controversy, let’s take a closer look at the policy implications. I’ve already identified a number of points associated with the historical development of property rights dispute between coastal states and the federal government; linking these points to policy relevant implications, the following can be stated:

and/or the law is not settled in a particular area, there is a greater degree of freedom in the interpretation of the law, simply because the justices are in uncharted territory. Thus, the lack of clear guidance (the greater freedom) allows for more personal factors, including political factors, to influence the decision-making process. Some have argued such circumstances allow for judges to engage in ‘de facto’ lawmaking by carving out an interpretation of the law that has the effect of creating ‘new’ law (much like legislatures do when they pass a bill). Such ‘judicial activism’ is often criticized as a departure from the fundamental role of the judicial system and ‘invades’ upon the separate government function of the legislature, which in our separation of powers system of government, is empowered to ‘make’ law.
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So what happens when the legislature is unhappy with the ‘policy’ that results from a judicial interpretation? If they can (meaning if the interpretation is not founded in constitutional limitations) the legislature ‘overturns’ the judicial decision by passing a law. This is precisely what occurred with the passage of the Submerged Lands Act; Congress (made up of representatives of the states) was unhappy with the policy implications of the U.S. Supreme Court decisions (because it removed state rights to lucrative offshore resources), and thus passed a statute that recognized state ownership rights. Remember, the Act was passed in 1953, which was years after the end of World War II. This was also a time where technology was allowing for resource extraction to occur further seaward of the coastline (into clear federal waters). Finally, the federal government was asserting sovereign rights further out to sea during this time, so there were certain resources that the federal government could claim, allowing the sharing of offshore resources with coastal states to take on a more palatable taste.

Page 60 of 103 • Point #1: Property Rights Are Critical In Establishing A Foundation for Policy Development. o When property rights have not been assigned clearly under the law, the lack of clarity can result in inefficiencies in government operations. In the present case study example, the lack of defined ownership rights between coastal states and the federal government in coastal marine resources resulted in political instability and the ‘sticky wheels’ of government branches jockeying for policy prescriptions. o If the above statement is true, then we can see the importance of clearly identified property rights as a precondition to developing sound policy instruments in marine resource utilization. Consider today how our offshore resource planning contemplates competing uses: oil and gas development, tourism and recreation, alternative energy production (wind and tidal for example), commercial resource extraction (fisheries and rare earth metals). These varying uses can raise conflicts based on how each user of the resource prioritizes the different uses. In addition, ‘spillover’ effects can result in user conflicts, for example conflicting uses between adjacent coastal states that impact the other states’ priorities. o By defining property rights more clearly, there is the opportunity to create a policy setting that is conducive to negotiation and dispute resolution. When parties understand the extent of their property rights, they are in a superior position to bargain those rights between conflicting user groups; the federal and coastal state governments can do this through the clarification of rights identified in the CZMA (for example), while private users of the resource have a clearer sense of their user rights based on established policy principles (for example through the prioritization of coastal resources identified by different coastal states in their coastal management plans under the CZMA).41 • Point #2: Legal Frameworks About The Ownership and Use of Coastal and Ocean Resources is Relatively New and Evolving

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For example, a private user can judge the relative merit of their desire to exploit oil and gas deposits in a coastal offshore area in comparison to other conflicting uses by reviewing the coastal state’s identified priorities under its approved coastal management plan. That same user can judge the ranking of their proposed use at other coastal states by reviewing the differing management plans. An example of how clearer property rights can lead to more efficient utilization of marine resources (and thus lower user conflicts) is available in the following article: http://works.bepress.com/chad_mcguire/27/

Page 61 of 103 o We are not here studying the evolution of property rights (both public and private) and the utilization of those rights from a legal context; if we were, our study would be taking us far afield and likely require a commitment of several years. Still, we can come to some basic understanding that the United States incorporates fundamental principles of property rights as a means of developing its economic model of capitalism that drives a lot of the economic activity within the country. The historical antecedents of property rights likely include legal frameworks to support those rights (consider the Fifth Amendment takings prohibition discussed earlier as one example). o Our historical review of property rights assigned to ocean resources suggests those rights are relatively new and still developing. Indeed, we will see this theme continue as we move further offshore and into an exploration of legal frameworks in the marine environment. Where our initial exploration of coastal rights was anchored in many respects by longstanding property law traditions (because we were mostly on land), our current and future exploration of those rights will take us into lesserdefined legal rights. Knowing this, we should also come to realize that policy frameworks will be less constrained as we have already noted the relationship between legal definitiveness and policy options: the less defined the laws in a field the greater the policy options; the more defined the laws, the less room for policy options – generally speaking of course. Understanding the two points identified above helps us place policy questions about ocean resources into context; as we move further offshore, the policy environment will become less constrained by legal frameworks because the legal frameworks become less certain. A visual representation of this is presented here:

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Thus, we should expect there to be a more evolving policy environment as we discuss offshore resources, and the further we move offshore, the more nascent the policy environment encountered. In fact, the extreme of this relationship will be shown in discussing international waters (beyond ~200 miles), which are often referred to as the open seas; in this area of the ocean there are few rules (legal frameworks) from which to constrain policy meaning there are lots of options (some might say ‘lawlessness’) from which to develop policy directions. We being our review in this section by taking a closer look at resource development from immediately offshore and into federal waters.

Offshore Resource Development
As the issues of the tidelands controversy were settled, property rights between coastal states and the federal government became certain (or at least ‘more’ certain). With a foundation of property rights in place, state and federal governments can then look to the development of those resources. Consider the role technology plays in how the term “resources” is defined in this context. As technology advances, the ‘capacity’ to reach areas of the ocean becomes realized. As the capacity to reach areas of the ocean increases, the concept of what constitutes a ‘resource’ can expand. We have seen a corollary of this phenomenon terrestrially in recent years where advancements in the techniques used for extracting oil and gas (commonly referred to as ‘fracking’) has increased the land-based production of oil and gas in the United States; known reserves of oil and gas previously thought of as undevelopable (whether because of technology limitations or economic feasibility in relation to alternatives) has now become a viable ‘resource’ due to technology advancements. The same is true of our ocean environment; a great number of potential resources exist in the oceans; whether we identify these ‘resources’ is really a matter of feasibility, a term that suggests a technological and economic capacity. As technology and economic factors advance, both coastal states and the federal government are continually evolving their understanding of the resources available to them in the marine environment. Sometimes the current definition and utilization of resources comes into conflict with other current and potential resource development: this is where I would like to direct our focus. The main text reading helps us understand the current state of legal frameworks related to offshore resource development. The Outer Continental Shelf Lands Act (OCSLA), a federal statute, provides the framework for offshore ‘resource’ development that is not related to fisheries (controlled under a different federal statute we will discuss later in the course). The main mechanisms of OCSLA are discussed in the primary text and the McGuire assigned reading. What is important to note is the relationship that is created between public and private partnerships for the development of these resources (mainly oil and gas, but also increasingly for minerals as the technology improves and the demand for ‘rare earths’ increases making the costs of marine extraction more feasible). The main policy framework that exists for the extraction of these resources is one based on a private enterprise seeking access to a public good. If certain conditions are met, the private enterprise is given a lease under OCSLA to access public land (the ocean) and extract the public resource (say oil and gas). In consideration of this right to access and

Page 63 of 103 extract the resource, the private enterprise pays a fee to the government for both the access and resource itself. The difference between the fees charged for access and extraction and the price paid for the commodity becomes the profit for the private enterprise (excluding other costs for extraction and bringing the commodity to market). Conceptually we can see there is a substantial commitment from the private enterprise when engaging in this kind of agreement. A lot of preliminary work is done by the enterprise and, often, the payback is really based on assumptions about the wholesale price of the commodity in the future and the ability to extract a significant amount of the resource over the lifetime of the lease, which can be for decades. If any of these assumptions are proven false, then the costs to the enterprise may very well exceed the benefits, and some argue that risk is fully borne by the private enterprise under the current policy scheme of OCSLA. With this in mind, we can add a consideration of competing uses for ocean resources. For example, in the energy field alone improvements in technology have allowed for the ocean to be a source of energy production in ways beyond oil and gas extraction. Wind turbines sited offshore offer opportunities for energy development due to the substantial source of wind in many offshore areas; the technology advancement in wind turbine design offers energy production with an input (wind) that is different from the historical source extraction (oil and gas). More traditionally, there are competing uses between current ocean resource utilization. Commercial fisheries are an important private and public partnership. Recent examples (consider the BP Deep Horizon oil spill in the Gulf of Mexico) of extractive marine resource practices highlight the impact such practices can have on commercial fisheries; the degrading of water quality can impact the life cycle of target fish species. In addition, water quality impacts from oil and gas extraction can also impact tourism (as evidenced in the BP spill) when the tourism is linked to recreational use of coastal waters. These examples bring us back to our earlier exploration of competing uses of marine resources leading to conflicts between user groups. The example in the McGuire (2012) reading on coastal planning, federal consistency, and climate change is a key way of thinking about the larger policy environment when existing policy directions come into conflict with new information. The focus for this example is climate change; if we see the phenomenon of climate change as a new set of information relating to ocean resources, then we can look at the competing interests at-stake when we view offshore resource development in context. In the McGuire reading the focus of the discussion is on coastal state adaptation plans towards sea level rise, and the corresponding policy roads undertaken at the federal level for offshore oil and gas development. Simply put, the current federal policy of offshore oil and gas development is, at least theoretically, inconsistent with coastal state policy goals of mitigating the impacts of sea level rise brought on by climate change.42 Thus,
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The chain of logic for this argument is relatively linear:

Page 64 of 103 any proposed policy direction by the federal government to increase offshore oil and gas development must be in direct conflict with coastal state goals on limiting sea level rise (and its associated impacts along coastlines).43 So when the federal government furthers a policy objective of increasing certain ocean resources (oil and gas in this case), that policy decision directly conflicts with a policy preference of coastal states (limit sea level rise and its impacts). If we look at the legal frameworks available to help understand this conflict in context, we see those frameworks provide little help in resolving this conflict. Indeed, the Outer Continental Shelf Lands Act (OCSLA) allows, and even encourages, offshore oil and gas development. At the same time, the Coastal Zone Management Act (CZMA) suggests approved coastal state plans are to be given priority with regard to planning in federal waters that may impact approved state goals. As the McGuire reading suggests, approved state plans that include the protection of coastal resources, when viewed under climate change and sea level rise, may indeed require the federal government to rethink its offshore leasing policies, at least for oil and gas. Moreover, the emergence of alternative resources in ocean waters (for example the consistent winds that prevail for wind power development) may provide a different way of thinking about what constitutes a ‘resource’ in the ocean, and how those resources might be ranked amongst one another based on certain criteria. What we know for certain is that OCSLA and the CZMA are both federal laws; in a hierarchy of laws analysis they are equal and meant to be read in harmony with one another. Of course we can look to the federal consistency requirement under the CZMA as a way of determining a priority between the laws. Further, we can look to other federal laws that might help further guide a policy direction when marine resources come into conflict, for example the National Environmental Policy Act (NEPA) during the permitting phase under OCSLA. Sea level rise is occurring, in large part, through a warming climate. A warming climate is occurring, in large part, through carbon forcing. Carbon forcing occurs, in large part, through human movement of carbon from a stored state (in the ground) to the atmosphere where increased concentrations lead to a greenhouse effect causing temperatures to rise. Offshore oil and gas drilling is an example of the human movement of carbon from a stored state to the atmosphere. Thus, sea level rise is occurring, in part, through offshore oil and gas development.

• • • • •
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Although focused on a different federal statute, the Clean Air Act, the U.S. Supreme Court case, MA v. EPA (2007) was brought under a similar rationale; coastal states argued their coastlines were being impacted by the federal government’s failure to determine whether or not “carbon” was a ‘pollutant’ under the Clean Air Act and thus subject to regulation. The details of the argument are different, but the purpose for the argument (in showing harm) is the same.

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Remember, our goal in this course is two-fold. First, we seek to understand the legal frameworks that help to define ocean law and policy. Second, we want to understand the larger policy questions that emanate in this field, and to place those policy questions into context, we use our newfound understanding of the legal frameworks to help define policy issues and, possibly, prescriptions. Here we can see how the intersection of property rights and technology is creating a bit of uncertainty with regard to policy development. Remember, as we move further offshore the law becomes less defined and thus the policy options increase. As such we need to be particularly careful in how we view issues such as offshore resource development; new information (via technology changes or high impact events) can alter policy directions quickly. Seeing this relationship is an important way of understanding the dynamic nature of policy development as we move further out to sea. END OF SECTION.

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Lecture 7: Offshore Resource Development Property Rights in the Ocean Introduction
In this section we begin to look at property rights in ocean resources in a bit more detail, moving from a focus on energy (our previous discussion) to focusing on other tangible things of value in the ocean. I think at the outset it is important to note that what is ‘valuable’ in terms of ocean resources is something of a moving target from a definitional standpoint. Consider our preceding discussion about sources of energy production (the inputs of creating ‘usable’ energy). Offshore reserves of oil and gas have traditionally been considered a valuable marine resource in terms of energy development. However, technological advancements (and we can think of technology here as a ‘disruptive’ force) have increased the kinds of ‘things’ found in and around the ocean that can be thought of as source inputs for energy development. Wind turbines are a great example; sited in certain ocean areas, the wind that is generated from heat differentials between the air and water provide the ‘source’ input for creating electricity. In order to capture the wind, turbines must be placed in specific locations in the ocean, making not only the wind ‘valuable,’ but also the specific location in the ocean where the turbine stands. Another example is the tidal energy created by gravitational fields; the tidal forces can be captured creating another ‘value’ as an energy input.44 The point above is that the ocean can house a variety of valuable assets depending on a number of factors (demand, technological capacity, etc.). In this section we look at certain examples of things that are valued in the ocean, and the corresponding rules that apply to those things. To begin, we review the concept of property rights and consider how they differ depending on the location and attributes of the resource in question.

Property Rights Associated With Ocean Resources
Recall the different kinds of property rights based on two characteristics, divisibility and excludability, represented visually here:

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The examples of wind and tidal energy help one understand the ‘disruptive’ nature of technology. As technology advances, it allows us to expand our view of what might be considered an energy input, thereby ‘disrupting’ our traditional definition of ‘energy’ inputs (like gas and oil), while also ‘disrupting’ what kinds things we might define as ‘resources’ in the ocean (like wind and waves as energy inputs).

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Recall that the oceans are examples of public goods, at least in the sense that the ‘lands’ and resources (things) contained in the ocean are owned by the public-at-large. Management of these publicly owned goods is accomplished primarily by government who acts as the trustee of the ocean resources, managing the resources for the benefit of current and future generations under the legal concept known as the public trust doctrine. In the active management of these resources, government can transmute (change or alter) the property right characteristics of ocean resources. For example, government can grant a license to certain private individuals giving them a right to take fish (arguably a resource) from the ocean; upon taking the fish the property right of the fish itself ‘transmutes’ (changes) from a public good to a private good. The person who ‘takes’ the fish is ‘legally’ entitled because they have been granted permission by the government (via the license) who, in turn, has authority to grant permission by virtue of its capacity as trustee of the fish as a public resource.45 When the private individual captures the fish under the conditions set forth in the license (the correct species, sex, maturity, etc.), the act of capture is the event upon which the property right transfers. Without the express conditions being met, the ‘capture’ is legally void and the act itself does not result in the transfer of property rights (a fish taken without a valid license does not become a private good by the act of taking the fish).

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This is true so long as the government is acting wholly within its authority as trustee. There may be instances where the government transmuting ownership rights of the public resource to a private party is outside its authority as trustee and thus in violation of its obligations to the public as owner of the resource.

Page 68 of 103 The example of the fish can be applied to a variety of other ocean resources, some of which are more intuitive by nature and experience (like oil, gas, minerals), and some of which are less intuitive (like wind near the ocean surface, ecological habitat, historic artifacts, or other spatially important areas). Once we understand that the concept of a ‘valuable resource’ in the ocean is fluid (pun intended!), we can expand our view of ocean resources from a policy standpoint. With this expanded view, we can overlay legal frameworks onto our concept of ocean resources and begin to think about the role of property rights in this context. In this section we are talking about defining property rights in relation to certain factors. One such ‘factor’ was noted in our example above, legitimacy; the private fisherman has legitimacy when she captures a fish under a license granting her the legal ability to do so. Legitimacy helps to define the property right in question; with legitimacy the fish becomes private property, without legitimacy the fish remains public property taken illegally. Exploring the questions of legitimacy, we find that legal frameworks are a key consideration in identifying (and resolving) policy issues; depending on how the law is interpreted, the resulting property right of the resource is determined. So, for example, policy options that do not consider the effect of the legal status of marine resource utilization under different scenarios can miss important property right distinctions leading to unintended results. We had some discussion of this topic in the coastal land use and takings section. The legitimacy of the government action in ‘regulating’ private land is a question of law that is bounded by constitutional principles, the Fifth Amendment on one side, and the Tenth Amendment on the other. The correct balancing of these interests is required when thinking about policy options: move too far in one direction and government legitimacy erodes. The same can be said here regarding property right definitions in marine resources; how the property right is being determined helps to justify (or invalidate) the legitimacy of the action.

Conflicts Between Marine Resources
The text defines a number of property rights that exist in marine resources by categorizing different kinds of resources and discussing the history and current legal rules that apply to those resources. Examples include historic preservation and salvage, marine protected areas, and fisheries management; points will be made about these topics in greater detail below. Right now I want to draw our attention to conflicts that can arise among the various things in the ocean that can be labeled ‘resources’ based on considerations and criteria mentioned above. Consider a situation where a particular area of the ocean contains a variety of resources that may compete with one another in how those resources might be utilized. We delved into this subject a bit when discussing federal consistency under the Coastal Zone Management Act (CZMA). Recall that state interests can sometimes conflict with federal interests in marine areas. If we look at the ‘interests’ being discussed, we can see they are really focusing on different ways to utilize the marine environment. The example provided was when the federal government wished to utilize resources in federal waters (say the drilling for oil and gas), and that planned utilization had the potential to

Page 69 of 103 conflict with state utilization of what it was terming ‘marine resources’ – say the protection of a coastal underwater habitat, like a coral reef. In this example the parties in controversy (state and federal government) are focusing on different ‘assets’ of the marine environment that are located in geographically distinct areas. Resolution often depends on how the law prioritizes uses; in the case of federal and state conflicts we discussed the role of the CZMA in helping to prioritize rights among the parties. Imagine a situation where the conflict between resource utilization exists in the exact same location of the ocean. For example, imagine an area of the ocean that has important attributes for wind development as one resource use, but also has important cultural, recreational, and aesthetic values that might be put in jeopardy if the wind resource is developed; this is the current example of Cape Wind, a wind turbine project in the works off the coast of Massachusetts over the last decade. Those interested in offshore energy development consider the site for the wind turbine farm to be important for a variety of reasons including: energy independence, sustainable energy development, climate change mitigation, and job creation. Opponents see the space as important for other reasons including the unobstructed view from the shoreline, the traditional use of the area for boating, and the cultural identify of the area for native people. The question we may consider is how might policy choose between these potentially competing values in the same location? Are some of these identified marine resources more valuable than others, and if so, how are we coming to that conclusion (how are we defining and analyzing ‘value’ in the context of the issue presented)? The Cape Wind example provides an important conceptual framework for our understanding of how property rights and legal frameworks impact our policy analysis of the issue. For example, the proposed site of Cape Wind sits wholly in federal waters making the permitting for the activity primarily a federal function (taking away some of the state’s role in balancing these interests). However, we also know the CZMA (a federal law) provides deference to coastal state management plans when the proposed federal action might impact those defined state priorities. Thus, we must look to Massachusetts’ coastal management planning and determine if the wind project might impact state priorities. There are also environmental impacts that can be considered under other federal laws (like NEPA for instance), but we hopefully get the point; conflicts can occur within the same geographic space of the ocean, and in order to understand the policy options within those conflicts, an understanding of the legal landscape is necessary. With this foundational understanding we can turn to some of the details about specific marine resources in this section.

Historic Preservation and Salvage
So, who doesn’t fantasize about finding some sunken Spanish Galleon off the coast of Florida ala Jack Sparrow! The riches, the intrigue, the mystique! We know there are people who spend small fortunes doing just this. Of course, they are subject to the same rules and regulations as everyone else. And, in America, we have no shortage of such rules and regulations!

Page 70 of 103 As you may have gleaned from the reading materials, salvage depends mostly on a question of property rights, and we know those property rights can be transmuted under certain rules from our discussion above. Under common law tradition, lost treasure was considered, in most instances, abandoned. Once abandoned, the treasure was capable of being retrieved by another. If done so, the materials on the ship would become the property of those who found it. This picture became dicey, as international custom allowed for ships flying under a particular flag to be the property of that nation (the ships were sovereigns of the nation in question).46 Under such situations, a lost ship was not thought of as abandoned, so a salvager could not claim immediate rights to the ship. However, in order to create an incentive for finding important sovereign properties, those who salvaged ships had legal entitlements to the bounty of this ship (they could claim the legal right of salvage).47 All of this became a bit more refined with the passage of the Abandoned Shipwreck Act of 1987. Under this federal law, ships became the property of the state in which jurisdiction they were found. This law gave the states special rights in the ship, subject to certain laws of salvage.48 What is interesting to me is the question of how these laws affect the incentives of individuals. Today, many states claim historical significance of certain shipwrecks within their jurisdiction. Moreover, governments are increasingly creating sanctuary areas in the ocean around certain shipwrecks of historical significance (consider Pearl Harbor). When we collectively engage in such actions, we limit what other marine activities can occur in the same area. So the area that is created as a marine sanctuary, for instance, may be designated for Reason A (its historical significance). The designation usually results in limitations placed on the development and utilization of other marine resources in the same area, thus limiting policy options. Another example of the impact of how we choose to prioritize certain marine resources to the exclusion of others.
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In this case we have an additional property right at play in ocean waters. In addition to the natural things found in the ocean in a particular jurisdiction that are owned by the public and managed by the sovereign (government) for the public’s benefit (our fish, minerals, oil, gas, and other examples), we can also have man-made things found in the ocean that retain their original ownership identify (the ship retaining its sovereign rights from its country of origin).
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We can note that the legal rules under common law tradition provide a particular framework for the transition of property rights. Of course if we change the legal rules that apply, say for example moving from common law rules to specific statutory rules, then we alter the framework for the transition of property rights.
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In this case, the legal rules change from common law to federal statute. Often these new rules reflect changes in preferences (policy directions) brought on by a number of political considerations that are influenced by changes in technology (capacity) and similar factors.

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Marine Protected Areas
Within the last few decades, protection of marine areas has become a major theme of marine policy. We have begun to recognize the importance of marine food webs, and biological hot spots in the marine environment (like we do in the terrestrial environment – for example the Amazon Rain Forest). With this recognition has come the development of laws aimed at protecting marine areas for various reasons. Sometimes the protecting is related to a specific event (like the USS Arizona National Park at Pearl Harbor); in this case the reason for the protection is closely tied with the human experience, cultural and historic. Other times, protection is related to significant biological and heritage values (for example, the Northwestern Hawaiian Islands Marine National Monument – which represents one of the largest protected marine area in the world). The relatively recent establishment of this monument did not come without controversy. A sizeable fishing enterprise was displaced, as well as other activities within the region that conflicted with the purpose of the monument. Competing uses among marine resources within the same geographic area came into conflict and, not unlike our evolving zoning practices on land, the marine environment is beginning to become subject to competing demands as our capacity to interact with the marine environment increases in step with our understanding of what ‘values’ exist in these areas.49 The point to remember is that we now have a general policy in the United States of assessing the various values of the marine habitat. In that vein, we will ultimately continue to reassess our priorities in the use of a given marine area. When we determine a specific value that requires protection, we have the policy and legal tool of marine protected areas to use at our disposal.

Fisheries
Target Fish Species is a term that is often used to refer to the kinds of fish we actively seek out in the ocean for commercial harvesting. In this section we look at the particular legal regime that surrounds one of the oldest ‘resources’ for humans in the ocean, commercial fisheries. From a policy perspective, fishery management has presented a number of unique problems, most of which are connected to understanding the
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The decision to prioritize marine protection over resource exploitation (like commercial fishing in this instance) is really one that must be analyzed within the policy context. As noted earlier, the variables that ultimately impact a decision to create a marine protected area are many, and these variables often compete with other interests in the same area. How one set of interests ends up being prioritized over another is a dynamic process in many cases, and this is particularly true when setting aside areas of the ocean for protection (like wilderness designations on terrestrial public lands). While we do not have time to explore the variables that influence these decisions in the greatest of detail, those of you who are interested should be encouraged to explore the history and development of these marine protected area designations.

Page 72 of 103 ecosystem dynamics of the target fish species. Indeed, the very notion of ‘management’ stems from the idea that the resource can be over-utilized and therefore exploited to the point of collapse. Some of the characteristics that help to explain this phenomenon will be highlighted in describing the property rights attributed to fish in the ocean as we overlay the major legal frameworks that apply in this area. We can begin by noting a few important characteristics of fish that may be different from characteristics of other ocean resources described earlier: • Fish are living organisms that reproduce. As such, they have unique lifecycles and population dynamics that vary between different species. This is important because, ultimately, managing fish as a ‘resource’ means ensuring that humans are not extracting fish at a rate that exceeds replenishment. To understand this rate of extraction, detailed information is required about the lifecycle of particular fish species, including understanding things that can impact the species outside of human extraction (like predation, disease, and other factors that can influence overall population numbers). Most target fish species move, and some move over large distances. Beyond having naturally fluctuating populations, fish swim around to different areas of the ocean, which creates some interesting issues when we think about ownership rights. Most of the time ownership is defined by what is found in a particular geographic area. So what happens if a coastal state gives a license to capture a fish that is originally found in state waters (state jurisdiction) but is tracked and ultimately caught in federal waters? If the person does not have a license to take that fish in federal waters, then is the act illegal? Did the fish become the property of the federal jurisdiction when it moved from state to federal waters? Connected with the fact that fish reproduce (the first point above), fish also die. Unlike other resources that seem more static or stable over time (like oil for instance), the ‘value’ of the fish exists mainly during the time it is alive, and in fact the value can be associated with a particular stage of life (for example caviar is, most often, fish eggs and thus represents the initial stages of life – wait until the fish are borne and it looses the necessary characteristics from which the value derives).

So fish live, breed, die, and move around. These characteristics impact the way in which we ascribe value to the species creating important policy considerations, particularly when legal frameworks are overlaid onto policy questions. One simple example is to consider the impact of choosing to not harvest a population of commercial scallops because of concern about by-catch of other target species, say depleted New England Cod; because Cod has been overfished and the population of the species has ‘crashed,’ policies have been implemented to protect the remaining populations in the hopes of seeing a rebound in its numbers. To help this process along large areas of habitat believed to be important breeding grounds for Cod have been protected from fishing. Many of these areas also contain other target fish species like the valuable (in high demand) sea

Page 73 of 103 scallop. Sea scallops, like other living things, have life cycles. Does it make sense to not harvest sea scallops in an area of high abundance (scallops don’t move very far so they tend to stay in specific areas) in order to protect the New England Cod populations? What if this means allowing tens of millions of dollars worth of sea scallop to be lost because of old age (they simply die)? Is this a prudent use of the public resource as contemplated under the public trust doctrine? By not capturing the scallops before death, that specific ‘harvest value’ is lost and cannot be recovered at another time; a prime example of how the shelf life (lifecycle) characteristic of this marine resource creates unique policy issues.50 Understanding some of these characteristics helps us place the management of commercial fish species as an ocean resource into a somewhat unique perspective. Because they move around, live, die, and exist in an environment (the ocean) that is hard to monitor with precision, there is a dynamic nature to understanding fish from a management perspective.51 Make some wrong assumptions about the population size, natural mortality, breeding conditions, or the impacts of human fishing effort on the
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Consider the alternative side of this argument looking at the protection of commercial fish species to support important ecological webs in the oceans. It is certainly arguable (there is strong evidence) that the diversity of living species found in the ocean are based on a complex set of interactions that have established a kind of equilibrium or balance over time. Directly intervening in this effort can have consequences on that established balance, in some cases creating an imbalance that can lead to a cascading effect where the lack of species diversity can cause extinction rates to increase. If we think about ecological diversity in the ocean as a resource, then we might see human intervention that diminishes this diversity as a violation of the public trust because the value is being wasted presently and, certainly, for future generations. This is not an argument that has been significantly advanced in the legal field, but the obligations of government under the public trust doctrine to not ‘waste’ marine resources might be the foundations for such an argument, particularly as our understanding of the importance (value) of marine diversity in supporting life continues to develop over time.
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Consider the following comparison. If you and I were given permission to log a certain amount of forest for the next fifty-years, we could arguably have the chance of being in business for the entire period. Indeed, we could survey the forest, know the types of trees, and how many are available for harvest. We could also determine growth patterns (and other relevant information), thereby determining our optimum harvest rates from year-to-year. This is quite literally impossible with fisheries. First, there is no proven way to know exactly how many fish are in your area at any given time. Even if there were a way, fish are transitory, and the numbers would constantly change. Maybe the easiest way to understand the difference is to think of this reality: when one looks at a mountainside full of trees, they see everything before them; when one looks at the ocean from above, they only see a reflection of themselves. It is very hard for us to know what is going on in the marine environment below the surface, and this remains a major obstacle to fisheries management.

Page 74 of 103 population, and you have a potential recipe for disaster; the collapse of ‘actively managed’ fisheries around the world stands in testament to this statement. Considering all of these variables, we can look to the actual system we have for fisheries management, and then we can come back to some of these points for further consideration. Fishery Management Policy in the United States The major source of fisheries management in the United States derives from the Magnuson-Stevens Fisheries Conservation and Management Act (MSA), a federal law that attempts to create management in a decentralized manner by delegating the development of management recommendations to regional councils across the U.S. Each council is made up of a mix of stakeholders from various backgrounds in the fishing industry; some stakeholders are from the industry itself, some are political appointments, and some represent environmental concerns. The concept behind the council system is that representatives from various interests in the fisheries of the region work collaboratively to determine how to manage the resource for a given unit of time (usually a fishing season). The guidelines for making management decisions are based on meeting broad policy goals (referred to as national priorities) outlined in the MSA, and the framework for meeting these goals is through a maximum sustained yield ‘filter,’ meaning the goals should be met while always maximizing the amount of target fish species taken in a given season. One question we can ask here (in conjunction with the information provided in the readings) is how exactly does a council determine maximum sustained yield for a given fishery? In theory the maximum sustained yield is some number of the fish species that can be taken by human effort that does not otherwise put the survival (or diminishment of the background population) of the species into jeopardy. Another way of saying this is the council is charged with figuring out how many of the fish in a given stock can be taken without diminishing the stocks ability to survive the take and also to continue to maintain a ‘healthy’ population level. Based on what we have state previously about understanding the dynamic nature of fish populations you can likely see that this assessment is difficult to do with precision (if not impossible). This is where the role of science becomes critical in the assessment phase. Under the MSA federal law, ‘maximum sustained yield’ is determined by the best available science. This means that regional councils must use science as the foundation upon which to set quotas of target species take each year. In an ideal world, science would provide the council with perfect information about the species population, including such information as the ‘natural’ mortality of the species in a given year52, the
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This includes assumptions about knowing the life cycle of the target species in detail, and then also knowing the particular stresses exhibited on the species for a particular year. For example, even assuming science could determine the normal background rate of mortality of the species, that particular population might be under acute stresses in a given year; a rare disease like ‘fin rot’ may be attacking the population causing a higher mortality rate in a particular season.

Page 75 of 103 actual population of that species in a particular stock, and the amount of human induced ‘take’ (both intentional and incidental) that can occur without impacting the stock’s ability to replicate its numbers for future generations (so there are fish to take from the population in the future). In a less than ideal world, this information is not readily known and understood, at least not with the precision assumed in the law. Thus, managers often place into their scientific assessments a precautionary measure, reducing the calculated total take by a certain percentage to allow for uncertainty about factors that can impact the mortality and thus population of the target species. Now consider that the calculation of allowable take is based in some measure of the ‘best’ available science (which does not mean the science is entirely accurate on any given species – it just means the best information we have on that species), and the calculation itself is done by scientists and others that are not necessarily members of the regional council.53 The final ‘distilled’ information is then given to the regional council members for their consideration and vote. We can hypothesize that, at this stage, the information that is given to the larger regional council is often sophisticated for many council members (remember where regional council members come from) and thus, in many ways, is likely deferred to by members when making decisions about stock assessments, mortality, and thus what is a reasonable quota of take for the upcoming season under the statutory principles of maximum sustained yield. Under such an iterative process, from year-to-year, we can further assume that new information can lead to some drastic changes in the quotas set for certain species; this often occurs when the actual landings of target fish species are low, as that ‘new’ information itself informs assumptions about populations (along with new research on population size and health if this is occurring in parallel with the landings). Changes in the allowable take from year-to-year can lead to difficulty for those participating in the fishery. For example, assume a fishery that has the following total allowable catch for 3 years as follows: • • • Year 1 Year 2 Year 3 : : : 100 units 200 units 50 units

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Most regional councils now employ subcommittees of experts in certain fields in order to help make sense out of the information that helps to form the basis of decisions made about the amount of target fish species that can be taken in a given year. For example, science and statistical subcommittees are often comprised of academic and professionals in various fields relevant to understanding the science behind the numbers and the calculation of the numbers. This committee often interprets primary data created by government scientists (usually NOAA Fisheries staff), but also interprets data submitted by academic institutions and other reports that may be established on relevant target species stock in the primary literature.

Page 76 of 103 Further assume you are a fisher with a catch share right in this fishery for 10% of the total allowable catch.54 Under these assumptions, let us look at how the information provided can impact our behavior relative to the fishery in question.55 In year 1 we are able to harvest 10 units of target fish species (10% of 100 units). We can assume that 10 units results in a set dollar amount of value (gross income) given the supply and demand for the particular fish landed (establishing the price per unit of fish). Whatever amount 10% of the allocation is creates certain incentives for us; if it results in a large profit we act in a certain way, whereas if it results in a small profit (or even a net loss) we likely act differently. Let us assume 10% of 100 units of fish results in a healthy profit margin for us. This profit may create incentives for us to reinvest some of the profit in the business, say for example in getting a larger boat or more efficient gear. These costs are undertaken as investments, believing future allocations of catch shares will be at least as good as the first year, and the price per unit of fish will remain stable over time (demand will remain high). Moving away from the details of the example for a moment, we may view the assumptions of constant supply and demand with a critical eye and assess whether they are reasonable. Indeed, it may be that relying on calculations about population levels of a wild species that is hard to understand seems, fundamentally, unreasonable. If science cannot easily determine the fluctuations of the population over time, how reasonable is it for commercial fishers to ‘gamble’ on such assumptions? Those of us who are risk adverse by nature may find such a gamble highly unreasonable (and even irrational). But remember, it is assumed that capturing the fish (and selling it in our market system) is realizing a public good because the resource has a shelf life; if we do not capture the resource, then the monetary ‘direct’ value of that resource is lost to old age and death by,
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You have a license by government to go out and catch 10% of whatever quota is set by government. This ‘license’ may be ‘given’ to you in different ways. You may be purchasing the right each year from the government, or you may be given this percentage in perpetuity. The point is the right to fish can be given to you in a variety of ways, ranging from a right of access (like a toll good property right) to a private property right (like a private good) from our property rights characteristics. Under the public trust doctrine, what matters most is that the government if yielding benefits for the public by giving this 10% right of access to the fishery to you; the public is benefitting from having access to the fish resources (directly through buying the fish, or indirectly through the economic revenue generated by the activity). In addition, the public is benefitting because it does not have to pay for the ‘capture’ of the resource, rather you spend your own resources (your own time and money) to go fishing. Thus, on balance, the benefits are assumed to equal (or exceed) the costs. Considering the fish resource is assumed to be sustainable (the population replicates if you don’t deplete the population to the point of extinction), the ‘deal’ becomes even better for the public (because the fish will be replaced in the near future).
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Remember, policy is very much connected to behavior patterns; ideal policy initiatives incorporate behavior patterns into decision-making.

Page 77 of 103 inevitably, natural causes. The alternative, it would seem, would be to nationalize fisheries and have the government (i.e., us) take the risk of stock collapse by paying for the ‘inputs’ into the system (the boat, energy, time and effort in capturing the fish). Putting aside the issues of nationalization as a policy direction for the moment, we can simply assume that private- public partnership in fishery management is the system of choice. That said, let us return to the example. If 10% of 100 units of fish landed results in healthy profits, then assuming other variables remain constant (particularly demand and therefore price per unit of fish), year 2 will result in a higher profit margin because 200 units of fish are allowed to be taken and 10% of 200 units yields 20 units of fish for us (double last year’s landings). If effort per unit of fish caught remains stable (the cost does not increase per unit of fish landed), then our profits will double in year 2 and likely create further incentives of investment. This is particularly true if the stock assessment and management strategy for the fishery has steadily increased year after year for several years; the steady increases over time reinforce a belief that the system will continue to provide for high yields of fish. Year 3 represents the problem year and thus highlights a major policy implication/consideration for us in the example. Unlike years 1 and 2, year 3 results in a quota being set at 50 units of fish, ½ of the year 1 quota and ¼ of the year-2 quota. Depending on profit margins this could be devastating for us as we are limited share of the total quota, in this case 5 total units of fish (10% of 50 units). The basis for this lowered quota is likely new information that leads to some revelation about the target species population health that was not apparent in how the quotas were set for years 1 and 2. We have already discussed the variables that might lead to this revelation, including the fact that we don’t know very much about many of these species, they are hard to follow in real-time (because they live under the water), and our best science is really a best guess about population size and health. So our new allocation may make it near impossible to turn a profit. In fact, if the trend of lowered quotas continues for another year to two, we may simply be unable to continue fishing as a business. Under this drawn out example is it any wonder why the MSA as a management scheme represents one of the more difficult policy approaches in our federal system?

The Lessons of Offshore Resource Management
We rely on private individuals to become willing participants in a system where they have little control over the allocation of the resource. The reason why is the resource itself is public in nature, not private. We may give the users access rights to the resource, and even a right to capture a percentage of the resource itself, but ultimately the resource is controlled at the federal level. If the resource is static, then there is a greater likelihood of calculating the risks involved in resource development and exploitation. Offshore oil and gas exploration is one example where initial research helps to identify deposits of the material offshore, and the risk is associated with assumptions made about the size of the resource; once the resource has been proven, there is little risk in the continued extraction. Fisheries are more difficult to manage because of the complexity of the living species; no one expects oil and gas to ‘reproduce’ like we do

Page 78 of 103 fish, and the oil and gas are less subject to variability of the known quantity. Moreover, factors can evolve over time that further constrains the amount of target species that can be extracted. While this is also true of other resources (like the Deep Horizon Oil Spill leading to a moratorium of offshore oil and gas development), fisheries are a particularly dynamic example of moment-to-moment management where consistency is extremely difficult to censure over time. The lessons from a policy standpoint are many. First, we can understand the relationship between the property rights established in offshore marine resources generally, the legal limitations based on those property rights, and the implications of the characteristics of certain marine resources in establishing policy directions. The fact that marine resources are public property means the resource requires particular management under the trustee obligations inherent in the public trust doctrine. Government is required to manage the property rights in such a way that maximizes benefits for the public both today and tomorrow. For certain resources that are static, this management might be somewhat easier, at least in theory. However, for resources that are dynamic (like fish populations) the management also becomes dynamic leading to situations like those described in our hypothetical above. What is important to note here is that the law provides a number of limitations when it comes to offshore resource development, and those limitations are subject to change over time. For example, the leasing of offshore areas for oil and gas development may, over time through better science and insights into cause and effect, come into conflict with other policy priorities, such as climate change. If it does, then other legal mechanisms (like the federal consistency requirement under the CZMA) may play a role in the capacity of the government to continue leasing the development of this resource. We have seen examples of changes in policy direction for certain offshore resources in this section, like the evolving definition and rights of ownership and salvage of marine resources; often these changes in policy directions coincide with technology advancements. Finally, our legal frameworks are often tied to better understandings of our environment. Fishing quotas are set to reflect the best information we have about the target species populations; as new information comes to light, we adapt our system to accommodate this information. Such a reactive policy can never really provide optimum insurance to its users, often resulting in frustration for those who find themselves on the wrong side of the bet. Some of us may be left with an unresolved feeling about this process, even to the point where we might ask ourselves if there is a ‘better way’ of managing dynamic marine resources? Some have argued adamantly for the privatization of offshore resources as a potential solution; divest the government of ownership rights so that private citizens can take on the responsibility of calculating how to best manage the risk inherent in these resources. For high risk resources like fish, this might mean managing the fishing effort to always be well below what seems a reasonable threshold to ensure the population is not placed at serious risk of collapse. Otherwise the private-public partnership is doomed to failure because the variability of populations (and lack of precision in understanding this ahead of time) creates an untenable control solely in the discretion of

Page 79 of 103 the public entity, leaving the private partner to internalize the costs associated with these decisions.56 At the heart of this discussion is really one about acknowledging the challenges that exist in public resource utilization. One unique characteristic of such resources is the concept that they live on in perpetuity for humankind; the resources are managed sustainably so that they exist for future generations. We can reflect on the impact this overarching goal has on policy in the field of marine resource utilization – a difficult field to understand, and for some, even more difficult to operate in. END OF SECTION.

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Often government has made a decision to bail out failing fishing industries (mitigate the costs) when the total allowable catch determination results in economically harmful reductions to individual quotas. The bail out is meant, in part, to acknowledge the risks placed on the private partner in this management scheme.

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Lecture 8: Offshore Resource Development Protected and Endangered Marine Species Introduction
We’ve just concluded a section that focuses our attention on property rights relating to potential ‘resources’ (both living and nonliving) we find in the ocean. One basic piece of information we should have in our ‘intellectual belts’ is that what is found in the ocean, essentially, is owned by the public. We know ownership of these ‘resources’ can be transferred. For example, the public can transfer ownership to a private party; we discussed this in the topics of licensure and capture (government grants a license to certain resources, and the private individual gets ownership rights by applying effort and capturing the resource). In addition, ownership rights can also be ‘transferred’ by operation of law for organisms that are mobile: fish, whales, dolphins, and other marine animals that are capable of locomotion are owned by the government (or not owned at all if in international waters – the ‘high’ seas) in which they are physically present. Thus, a marine animal that moves from State A waters to State B waters goes from being the public property of State A to State B when it enters the waters of State B. Public ownership comes with public responsibilities in ocean resources. This section discusses legal frameworks that aid in the management of a category of resources not mentioned earlier. Before we were discussing, primarily, resources within the context of direct values; we were looking at things found in the ocean that are considered ‘valuable’ because they can be extracted from the ocean and used for some other purpose. In this section we are looking at a different kind of value, indirect value, where the focus is on the importance of the resource for its existence and associated ecological benefits such as biodiversity. So here we are not focused on how these specific marine resources can be manipulated for human benefit (like capturing fish for consumption or oil and gas as inputs for electricity generation), but rather on how their existence is important to our survival and wellbeing (by simply leaving them alone or ensuring they have sufficient habitat for their survival). As we encounter the major legal frameworks for this section, consider how they are different in kind from the earlier legal frameworks focused on the extraction and manipulation of marine resources for human use. For example, the earlier frameworks spent considerable time developing systems of property rights transfer and systems governance over the marine resources; the concern was about how to identify and distribute ownership rights to the resource, and also how to govern the extraction of the resource for purposes of long-term management. Here our policy-orientated concern will be more heavily influenced by other factors including protection of the resource at the exclusion of economic considerations. While the previous sections placed direct economic considerations at the forefront (maximizing economic gain of the resource), the legal frameworks here are most concerned with the protection of the resource, even when that protection results in economic harm. For example, we will see how the protection of endangered species can, as part of protecting the species, result in the protection of

Page 81 of 103 important habitat from functions like fishing and oil/gas development. The legal framework prioritizes survival of the species, which is quite different from our earlier definitions of ‘marine resources’ – at least when considering the term “value” in relation to “resources.” The goal of this section is to show, in large part, how offshore marine resources can be prioritized for their existence value. The legal frameworks employed to achieve this goal are different kinds of policy frameworks in the sense that they begin from a premise of protection-by-command, thus the implementation of the legal frameworks are not concerned with shared governance structures such as the regional council model under the Magnuson-Stevens Fisheries Act. The insight here for us is that when legal frameworks are created to implement a different kind of policy goal, the structures of that framework can operate quite differently in practice. Try and take note of this as you work with the materials in this section.

Creating Legal Frameworks to Protect Marine Resources
Creating legal frameworks aimed at protecting marine resources follows a different ideological path than creating frameworks to exploit marine resources. This is particularly true when the resource in question is both living and mobile; the framework is often limited by the geographic extent of the sovereign from which the law is passed. There are exceptions: for example, an international agreement on the protection of a marine resource can be binding against all nations that are signatories to the agreement. Thus, international agreements have the capacity to protect marine species that may be found in the various jurisdictions of the signatory nations, and also within international waters (the high sea) when encountered by those signatory nations; they are not necessarily protected in non-signatory nations or when found in international waters by non-signatory nations. We have previously discussed marine protected areas (MPAs), which represent an example of geospatial planning that is geared towards the protection of certain ‘assets’ within the defined geographic marine area. MPAs are meant to protect nonliving and non-mobile things that exist in the protected area, for example a reef system or a culturally important sunken shipwreck. MPAs have also been used to protect living things, for example they have been created in certain ‘diluted’ formats to protect known habitat for depleted and vulnerable fish stocks – often referred to as ‘closed areas.’ Even though the purpose of the closed area is to allow for the regeneration, and ultimate exploitation, of the target fish species, it operates under fundamental principles of protection and, by implication, can result in the protection of other species (intended or unintended) in the area. For example, by closing off a part of the ocean to human interactions (to protect a target fish species), the area can become a refuge for non-target species of fish and other marine organisms. Like placing a large wall around the area, the MPA can act like a virtual fence allowing the space to develop without human intervention.

Page 82 of 103 Moving back to the question of legal frameworks created for the protection of living marine resources, we have three examples to discuss in detail. The first two – marine mammal protection and endangered species protection – deal with national laws aimed at protecting certain living marine species to varying degrees. The second – international whaling ban – is our first example of an international legal framework for the protection of a specific group of marine mammals – the whales. We will look at these examples in a contextual framework, seeing how they go about protecting the marine animals in question, the extent of that protection, and the surrounding policy issues that arise as a result of that protection.

What is Being Protected?
The following figure has been created to help us understand the different protections afforded under the three legal frameworks discussed in this section:

The figure is based on a continuum representing a summative ‘variable’ meant to show an overall level of ‘protection’ afforded by each legal framework. The purpose of this section is to discuss the reasons why each statute is placed on this continuum, and in the process of doing so highlight aspects of each framework for a clearer understanding of how each works to achieve its given goal. After this analysis is completed, we will review the policy implications of each framework in greater detail, looking to identify insights into how such frameworks are created and the extent to which they achieve various goals. To begin, we can note the placement of the different legal frameworks above on the spectrum. The International Whaling Ban sits far to the left signaling the limited protection afforded whales under this framework in comparison to the other frameworks being evaluated. The Endangered Species Act sits to the far right, suggesting marine

Page 83 of 103 animals that qualify under this law receive the most protection. Finally, the Marine Mammal Protection Act sits in the middle, suggesting it gives more protection than the International Whaling Ban, but less protection that the Endangered Species Act. The first point to take away from this summary is that the levels of protection afforded here are relative, meaning all of these legal frameworks seek protection of the marine ‘resources’ in question. If we were to compare these statutes to other marine resource legal frameworks, we would find the level of protection is actually quite high in comparison to those other more extractive frameworks – something like the following:

As we can see from the figure above, the three legal frameworks under consideration are created to protect marine resources, but afford different degrees of protection; this becomes more obvious when the frameworks are placed in comparison to other resource development, including the extraction of resources such as offshore oil and gas development and commercial fishing. Let us now look at the three protective frameworks highlighted here in more detail in order to better understand the factors that drive the difference between them. Whales Most of us understand the history of whaling; the book does a decent job of summarizing the major issues that led to the establishment of the 1946 International Whaling Convention. In sum, whales were traditionally sought after for extractive purposes, and different parts of the whale were used as inputs for human purposes (whale oil for various energy and lubricants, baleen teeth for corsets, combs, and other manufacturing uses, and so on). Over time advancements in technology allowed for an increasing efficiency in the capture of whales to the point the rate of extraction of certain species was outpacing the rate of replacement. In order to deal with the real possibility of driving certain whale

Page 84 of 103 species to extinction, the 1946 convention (understanding we have not discussed principles of international law in-depth as of yet) resulted in the establishment of the International Whaling Commission. Initially the Commission was set up to place a moratorium on whaling to increase the stock of the species. The idea is similar in concept to recent moratoriums of certain commercial fish stocks determined to be severely depleted; stop the human-based pressure on the population to allow it to rebound to what is considered a ‘healthy’ level. Once the stocks rebound, then a more managed (i.e., sustainable) approach to the whaling can replace previous efforts. So the purpose of the ban on whaling in this international agreement is to momentarily halt the extraction of the whale species; there is no comprehensive desire under this agreement to prevent whaling long-term, but rather a reactionary acknowledgment of over-whaling to the point that a number of species are at-risk. Thus, within this international framework is the intended policy that whaling resume at some point in the future; the goal is not to prohibit whaling as an act, but rather to stop whaling for a period of time to allow populations to rebound before resuming the activity. Today issues generally involve the scientific take exception to the whaling moratorium, as well as exceptions for certain ‘native’ activities that allow for subsistence hunting and cultural-historical connections to the activity. Regarding the scientific exceptions, countries such as Japan usually take their scientific limit of certain whale species each year, where the meat of the whales generally ends up in the Japanese markets. Other natives and countrymen are afforded certain takes depending on their historical connection to whaling. What is important to remember is the original IWC is an agreement among nations: no individual nation need agree voluntarily. In order to encourage the widest possible involvement of nations, compromises were made. It is likely that sometime within the next few decades, we will find where the IWC is headed regarding the current moratorium on a number of species. The policy question for the future will be whether whaling activities will continue in some capacity, regardless of population rebound. Undoubtedly impacting this decision will be the preferences of the evolving international community? Marine Mammals Marine Mammals are amazing in many respects. Strictly from an aesthetics standpoint, they are often termed charismatic mega-fauna because they are cute, cuddly, and we often give them human characteristics; movies such as Flipper and Free Willy represent this preference. However, we also know dolphins, for instance, are on a short list of animals that show self-recognition (they have a sense of self when they look in a mirror). This is very human-like, and might suggest a higher functioning brain capacity. Well, what are we to do with animals that exhibit behaviors closely paralleling our own? Should they be treated differently from other animals? If they should, is it because of how they look, or because of other factors, like exhibiting characteristics closer to our own? I am not sure there is a clear answer to this question, but I do know we have passed laws geared towards the protection of marine mammals, most specifically the Marine Mammal Protection Act (MMPA). The fact that we have consciously chosen to create a

Page 85 of 103 federal law for the proactive protection of marine mammals is an important policy statement in itself; consider: have you ever heard of the Land Mammal Protection Act? From an operational standpoint, the MMPA protects marine mammals from ‘harm’ or ‘harassment’ as defined within the statutory language; in essence, activities that rage from harassment to their deaths is prohibited. There are exceptions for intentional acts, the statutory details of which are presented in the text. Outside of the statutory language, the MMPA is a federal statute, meaning it is a law that is created and enforced solely in the United States. Thus, it only applies to activities occurring within U.S. ‘jurisdiction,’ which means on U.S. soil or on vessels (ships) in other jurisdictions (ships flying under the U.S. flag). Unlike the whaling ban mentioned above, which is an international agreement amongst signatory nations (nations who have signed the agreement), the MMPA is a wholly national law. Endangered Species There are a number of frameworks, national and international, that attempt to proactively protect endangered species.57 The focus here is on the United States Endangered Species Act (ESA). This federal law was passed in recognition of the importance biodiversity plays in healthy ecosystem functioning, and thus the important role species diversity plays in supporting principles of biodiversity. To stem the observed decrease in species diversity, Congress passed the ESA, with its main goal of identifying species that are in danger of going extinct, and when so identified, placing special restrictions on the ‘taking’ of those species, and also restricting the human impact on identified critical habitat for the species. This included the identification of a few large ‘mega-fauna’ that are well known in the marine habitat, in particularly the North Atlantic Right Whale.58 The ESA prevents the taking of a listed species. Taking is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in such activity. The term harm is defined to include significant habitat modification or degradation. So, the ESA not only protects the species, but its essential habitat.

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The term “proactive” is being used here a bit loosely, particularly if the cause of the particular species moving towards extinction is due to human actions. What is meant here is that, whatever the reason for driving the species towards endangerment, the legal framework is envisioned as a means of identifying these species and, once identified, seeking to proactively protect their wellbeing.
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In the case of the North Atlantic Right Whale (termed the “right whale” because it stay at the surface and float for a prolonged period when killed making it easier on the whalers of the day), the pressures placed on its population are well documented to derive from human activities. Thus, previous periods of whaling for extractive purposes undoubtedly served to make the whale “endangered” today.

Page 86 of 103 The factors for listing under the ESA are as follows: • • • • • The present or threatened destruction, modification, or curtailment of habitat or range; Overutilization; Disease or predation; Inadequacy of existing regulatory mechanisms; Other natural or manmade factors affecting continued existence.

Once a species is listed, the full protections of the ESA become realized. In practice this can result in significant changes to current human behavior patterns and economic expectations. One example that comes to mind is the listing of the North Atlantic Right Whale. One of its main ranges is an important shipping channel into Boston Harbor. After it was listed, changes were made to when ships could use the shipping lane. When policies were modified to favor shipping over whale protection, a citizen suit was brought, and the whales’ protection was determined judicially to take precedence over economic concerns.

Policy Interpretations of Protective Legal Frameworks
Now that we have some understanding of legal frameworks aimed at protecting marine resources, with examples of those protections in practice, we can step back and consider the policy implications of these frameworks. For example, the decision to create the Endangered Species Act happened well before the application of that law to the North Atlantic Right Whale in Boston Harbor; it is unlikely that the economic impacts of the kind that occurred in the Harbor were known when the statute was being passed. And this is but one example of how the ESA has been implemented since its passage, and the policy implications of its legacy on other factors of human wellbeing. In fact, what we find is that, often, protective legal frameworks like the ones described in this section juxtapose the welfare of specific (and often non-target) marine resources against direct economic prosperity; the original purpose of the statute (to protect the ecological values of biodiversity) can become lost when those values are pitted against immediate economic concerns. And as we can imagine, when the economic prosperity of global markets is faltering there is even less willingness to appreciate the indirect ecological values supported by these legal regimes. To help us place the economics vs. ecology argument into greater context, let us look at a response described earlier regarding overfishing of commercial species. For recollection purposes, when a target fish species stock is overfished, the response has often been to place a moratorium on fishing effort for that particularly species. This often includes drawing a spatial boundary around what is considered important ecological habitat for the species and restricting human interactions in those areas, for example by creating a kind of marine protected area (MPA). Now the purpose of enacting the moratorium is awareness that the target species populations are depleted; this ‘awareness’ often comes from the landings of the target species being much lower than anticipated (fishers are not finding the abundance of target species assumed when they go fishing).

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Similar to the ‘triggering’ mechanism of the ESA, the response to identifying the depleted population is to apply restrictions on access to the fishery; by leaving the population alone (i.e., removing human effort), the fish population will naturally rebound to a point where fishing can resume. Often when these restrictions are placed on the population there is a strong degree of outrage from the fishing community (particularly when the restriction emanates from government authority rather than from the fishing community itself). The basis for this outrage varies, but is often founded on the idea that government is restricting access to a resource, and that restriction directly impacts the economic wellbeing of the fishers.59 Thus, there is a direct association between the government intervention and the economic impact of that intervention; this is clear in the example here because the marine resource being protected – the fish – is the proximate source of the economic wellbeing; the fish are being extracted because of their direct economic value as a food source for humans. Like the fishery collapse example, the legal frameworks discussed in this section proactively seek to protect marine resources based on certain conditions being met. In the case of the international whaling ban, the condition triggering the protection is precisely like the condition in our fishery example; the overfishing of certain whale populations has led to a crisis moment where a moratorium on whaling is required, or at least a moratorium is agreed to by a number of whaling nations. The condition triggering the Endangered Species Act protections is the fact that a species (including whales) may be listed as ‘threatened’ or ‘endangered,’ meaning their population numbers have become so low that, without intervention, extinction is a real possibility. Finally, the Marine Mammal Protection Act has a slightly different condition triggering protection: if one qualifies as a ‘marine mammal’ under the statute, then they receive the protections of the statute. The conditions upon which these different statutes are triggered help to bring to the forefront some of the policy implications for our consideration. For example, marine mammal protection will occur under the MMPA without other preconditions being met; simply qualifying as a marine mammal affords you protection. There is no preliminary weighing of costs and benefits (at least in most cases), and thus considering the impact of the MMPA on economic activities is of secondary concern at best. The ESA is a bit different because its membership is predicated on meeting an important precondition; one can only become a member under the ESA if they have the qualities of being “endangered” or “threatened” as contemplated by the Act. In this way the ESA provides some consideration of economic impacts, but that consideration happens before the official listing of the species. What I mean here is that the impact of our economic actions on the species is not fully considered until the animal has met the threshold of protection under the ESA; until that time, and barring protections from other statutes, the economic

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Some fishers believe the underlying science is flawed, and thus the population is healthier than presumed.

Page 88 of 103 activity occurs.60 Consider the fishery example from above: we continue to fish a target population until that population is clearly placed into jeopardy. Only until we have reached this ‘jeopardy’ threshold do we place our economic priorities into a contextual discussion about preservation of the species. So when we look at these legal frameworks from a slightly larger perspective, we may see they are not entirely proactive in how they protect certain marine resources. Indeed, with the exception of the MMPA, these frameworks have preconditions that have triggered the creation and application of the framework to protect the resource; if the preconditions had not been met, then the resource in question would not be protected. For example, whales may still be hunted under the IWC if their populations were never threatened through human effort. So we may then see this policy area as one defined by circumstance rather than a concerted effort to highlight the ecological values of species as something paramount to human wellbeing (say through economic progress). Now this is not to say these policies do not prioritize the existence value of certain marine species, they certainly do. The point is to reference their utility by deciphering how they have come into existence, and also how they work from an operational standpoint. It may be that we can find other ways to prioritize marine species wellbeing that is not founded in legal frameworks; sometimes the best policy directions is to work within the law, but outside of legal frameworks. An excellent case study of doing just this, the dolphin safe tuna campaign, is a great way to highlight such policy directions.

The Dolphin Safe Tuna Campaign
A few decades ago dolphins were being inadvertently caught in the nets of tuna fishermen. An interesting correlation between dolphin pods and schooling tuna created this unfortunate situation; tuna fishers would observe dolphin pods at the surface of the water, and this would often indicate to them that tuna would be schooling below the dolphins at some depth. The fishers would then release a net around the dolphin pod and the net would ensnare both the tuna and dolphin. As the net was raised capturing the tuna, dolphins would also be captured. There was a fix for this unfortunate set of circumstances; nets used to capture the tuna (and inadvertently capture the dolphins) could be retrofitted with holes at the tops of the nets. As the net was pulled together, the holes would offer the dolphins an escape (since they were at the surface), but would not provide escape for most tuna because they would aggregate near the bottom of the net. However, the fix was not without cost. The nets are expensive and the retrofitting both removed the nets from use and was costly for fisheries of developing nations.
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Other statutes, like the National Environmental Policy Act (NEPA), may be triggered and require some evaluation of potential impacts of certain species prior to engaging in some economic activity. For example, a plan to develop a new highway across undeveloped land may require an assessment of the species that use that land and a determination of the impact of the highway development on that habitat.

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The United States was quick to take action domestically on the incidental dolphin catch. Considering dolphins are marine mammals, one could easily argue capturing them in tuna nets was both ‘harmful’ and ‘harassing’ as contemplated under the Marine Mammal Protection Act (MMPA) and thus a violation of federal law. As such, there was a strong legal basis upon which the U.S. federal government could require the retrofitting of tuna nets to ensure dolphins were protected in the process. Of course this requirement was limited to the jurisdiction of the United States itself, as well as any tuna vessels operating under the United States flag in waters outside of U.S. jurisdiction. The requirement of protecting the dolphins did not apply to tuna caught outside of U.S. jurisdiction by foreign tuna fleets. Thus, the MMPA could not be used as the legal instrument of implementing a policy of protecting the dolphin outside of the jurisdiction of the United States; some other strategy would have to be employed to achieve the policy goal. The United States attempted to implement a wider reaching policy to protect the dolphins, one that would impact international tuna fishing operations. To accomplish this goal, the U.S. enacted a trade embargo on tuna that was caught in other jurisdictions without implementing dolphin safe fishing strategies. The idea here was that the U.S. could use its influence as a major importer of tuna products; since the U.S. market is a large consumer of tuna, the federal government could create an incentive for international fleets to adopt dolphin-safe fishing methods: access to the U.S. market. Tuna fishing operations that did not adhere to dolphin-safe fishing methods (essentially retrofitting their nets) would be excluded from the U.S. market and thus loose out economically. In essence, the U.S. attempted to formally use its consumptive power as a means of creating policy change in other countries. So this was not a command legal framework policy like the MMPA, but rather an exclusionary policy stance that placed a barrier to market participation for members who chose not to comply with the U.S. standards. The penalty for the exclusion was monetary in nature: exclusion from the U.S. market. The incentive was to make the costs of non-compliance far exceed the costs of retrofitting the nets. Upon consideration, a rather brilliant policy initiative to get around national sovereignty issues. The problem with this policy initiative – the ban on imports of tuna fished with unsafe dolphin methods – was that it conflicted with a separate legal framework that bounded the United States itself. The U.S. is a signatory member of the World Trade Organization (WTO), formerly known by the acronym GATT (General Agreement on Tariffs and Trade). This international law provides a framework that establishes rights and responsibilities with respect to international trade. When a country is a signatory to the agreement, they are bound to act within the duties and obligations of that agreement with respect to other countries. Now there are a lot of such duties and obligations contained in GATT at that time, one of which was a prohibition on interfering with existing trade agreements with other signatory members that are not explicitly allowed under the international agreement. So, unless GATT allowed the United States to prohibit the imports of tuna caught with dolphin unsafe methods from another signatory member

Page 90 of 103 country, the attempt by the U.S. to prevent such imports could be seen as a violation of its treaty obligations under GATT. One of the countries the U.S. attempted to enforce its tuna import embargo against was Mexico, at the time a signatory member of GATT. Mexican tuna fishers did not voluntarily retrofit their nets to protect dolphins, and when the U.S. banned the import of Mexican tuna, Mexico brought a trade violation claim against the U.S. under GATT. An international tribunal ruled against the United States61, stating GATT did not allow for such unilateral barriers to trade from signatory nations, and thus the U.S. action was outside of its obligations under GATT, resulting in a violation of Mexico’s rights under GATT. One way for us to visually understand this result is to recall the relationship between legal frameworks and degrees of freedom offered to those existing under such frameworks.62 A visual representation of this relationship is presented here:

As shown in the visual representation above, the U.S. action of banning tuna from other countries fell outside the justifiable actions a nation can unilaterally take when they became a signatory to GATT. This fact provides a number of important points for our consideration. First, we can see that legal frameworks bound government (and individual) actions in many ways. Thus, the creation of legal frameworks should be carefully considered because they tend to result in limitations on discretion. From a policy perspective, laws must be carefully reviewed because they often limit policy options. In this example, the policy option the United States chose can be summarized as follows:
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By becoming a signatory to GATT, the U.S. allowed itself to be subject to the jurisdiction of such a tribunal for alleged violations of GATT obligations.
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A more detailed discussion of legal frameworks and their influence on government choices is contained in the administrative law course offered in this program.

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Ban the importation of tuna caught with methods that harm dolphins regardless of the country from which the method is being employed.

This policy option seems quite reasonable on its face. A sovereign government wishes to advance a moral imperative and, by the fact that it is a sovereign, should be able to do so without much intervention. However, through the act of signing onto an international trade agreement, the U.S. has obtained both privileges and obligations. One would assume the privileges (benefits) outweigh the obligations (costs), otherwise why would the sovereign effectively give up some of its sovereign rights (like the right to place conditions on who it does business with). Whatever the reasons, in this case the U.S. attempt to use trade barriers as a means of promoting a policy goal impacting one of its obligations under GATT. There are other options for the U.S. if it wanted to use trade as the mechanism for promotion dolphin safe tuna harvesting methods. For example, the policy option mentioned above could be revised to state the following: • Ban the importation of tuna caught with methods that harm dolphins only from countries that are non-signatories to GATT, or otherwise where such a ban does not violate affirmative duties placed on the United States through agreements with such countries.

We can see here how the language has been altered to accommodate the conditions in which the implementation of the ban would impact an existing obligation. Of course, the more conditions placed on the ban, the less effective it may end up being. For example, it may be that very few countries do business with the United States that includes the exporting of tuna to the U.S. where that country is also not a member of GATT or a similar international agreement that precludes the banning of tuna imports. In such situations the policy objective is significantly diluted and, in effect, very little gain is made in the effort. In our example here of the U.S. / Mexico dispute, the United States withdrew its important ban against Mexican tuna under the provisions of GATT. Thus, a different policy direction would need to be undertaken in order to achieve the goal of promoting dolphin safe tuna. Indeed, this alternative direction came in the form of a consumer boycott on tuna captured using unsafe methods. Advocacy groups were able to highlight dolphin safe tuna products by getting an official label onto these products; cans that contained tuna from unsafe fishing methods were not able to use the label, and this was strictly enforced (ensuring no free riding in the labeling). Along with the labeling came a strong public campaign to raise awareness about the issue, helping to establish public outrage. The result was a decision by the consumer in the U.S. to simply choose only dolphin safe tuna products. Even with higher prices, consumers voted with their wallets, and this effectively resulted in a ‘de facto’ embargo on unsafe tuna; rather than the government violating international law to create the embargo, consumers in the free market simply made a preference choice entirely within their legal rights. This resulted in

Page 92 of 103 Mexico (and other countries) seeing a dramatic drop in the demand for their products on U.S. shelves. Not willing to be placed outside the U.S. marketplace, these countries adopted dolphin safe fishing methods allowing their products to fit within U.S. consumer preferences. The moral of the story here for our law and policy understanding is multifaceted. We should be able to see that making reasoned policy choices is about having a sound understanding of the environment in which we are working; if we want to protect dolphins (or other marine resources), then we must consider the entire environment in which dolphins exist. We can pass a federal law that includes dolphins as a subset of marine mammals, and then enforce that law within the jurisdiction of that law. If dolphins exist outside that jurisdiction and we wish our policy of protection to extend to those extraterritorial places dolphins exist, then we must expand our policy options. As we expand our policy options, we must incorporate limits placed on those options, and one such category of limitations are legal frameworks. Through understanding legal frameworks in the context of our policy problem we are placed in a superior position to make judgments about policy options; the directions we choose will stand a better chance of being found ‘valid’ in the face of opposition (at least from a legal standpoint). This case study of the dolphin safe tuna campaign should help you see how law and policy interact in the protection of marine resources that have unique characteristics (including the ability to exist beyond sovereign boundaries). END OF SECTION.

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Lecture 9: Jurisdictions Issues Offshore International Law Considerations Introduction
Recall our earlier discussions about property rights, particularly the characteristics that help to define certain property rights, a visual representation of which is copied here for our recollection:

Based on the characteristics of excludability and divisibility, we are able to discern the major ways we humans categorize physical things as property. We have already discussed in some depth how marine resources can take on different property right characteristics based on the circumstances surrounding the resource. For example, a marine mammal within U.S. jurisdiction is ‘owned’ by the U.S. while it is physically present in U.S. waters; if the mammal moves outside of U.S. waters, it is no longer ‘owned’ by the United States. The effect of this change in ownership by the circumstance of physical location creates policy issues that need to be considered. For example, if the U.S. has a policy of protecting marine mammals within its borders (a policy legitimized by the passage of the MMPA), then that policy is frustrated when the mammals move outside of U.S. jurisdiction because the ‘rules’ of ownership have changed based on other rules regarding jurisdictional limits. In this way, the rules regarding jurisdiction impact other rules for the protection of marine resources, and the common factor affecting both the ‘protection’ rule and the ‘jurisdictional’ rule is physical location.

Page 94 of 103 Another example includes property rights and rules established for transferring those property rights within a jurisdiction. As previously mentioned, commercial fishing licenses are created by government as a way of realizing the direct economic utility of certain marine resources like fish and scallops. The property right of the resource (while in U.S. jurisdiction) is that of a public resource. Government grants the right to certain private individuals to capture the resource (under their own efforts), and upon the act of actually capturing the fish, ownership transfers from the public to the private individual – the resource becomes the private property of the individual fisher. Again, the legitimacy of this act is wholly based on a common factor, physical location. Only so long as the resource is located in the jurisdiction of the United States is the ownership right controlled by the United States; if the fish moves outside of U.S. jurisdiction, then the ability of the U.S. to assign the property right to a private commercial fisher no longer exists. So, for example, if the fisher captured the fish in another country’s jurisdiction, then they could not claim a legal right of ownership over the fish based on U.S. law. This discussion of property rights in relation to physical location is meant to get us to start thinking about the role of physical location, and thus legal jurisdiction, in greater detail. The fact is that as we move further offshore, resources (and particularly mobile resources) are subject to varying claims of ownership based on where they are located at a given time. In addition, some areas of the world’s oceans are under competing claims of jurisdiction; the exact ownership of those geographic areas has not been fully determined (or acknowledged) by the international community as between certain countries. Because jurisdiction is so important to our understanding of legitimacy in developing policy, we spend some time here discussing the conventions that have been developed regarding jurisdictional rights of coastal nations from the land seaward.63 The main international legal regime created to support jurisdictional claims of coastal nations is the United Nations Convention on Law of the Sea (UNCLOS). We review UNCLOS in order to better understand the jurisdictional norms that apply to coastal nations, and also to identify some of the policy issues that are created from these norms at the international level.

A Historical Perspective
Recall our earlier discussion about the discovery of oil and other marine resources that began the tidelands controversy between the United States and coastal states (like California). Much of the driving force behind that controversy between ownership rights of coastal resources was technological development; as technology allowed for marine
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The international term of reference for countries that lie on the coasts, in relation to one another, is actually “coastal states.” We previously used the term “coastal state” to refer to the states within the United States of America so we could distinguish between state and federal rights. In this section we will use the term “coastal nation” so as not to confuse the reader. However, you may read “coastal state” in some of the materials: understanding this is meant to reflect to countries and not states within countries in this section.

Page 95 of 103 resources to be reached and extracted, the ‘value’ of those resources began to be realized, particularly the direct economic value of the resource. As a consequence, the desire to capture that value created competition for the resource that, for the most part, did not exist prior to technology ‘realizing’ this value. In this way we can see how technology can be a powerful force that creates new problems requiring policy development; the technological capacity to extract the resources (and the corresponding economic benefits) created the ownership conflict between state and federal government requiring policy solutions (ultimately the Submerged Lands Act) to resolve the dispute. In the same way that technology created an issue regarding ownership rights of the ocean for the state and federal governments in the United States, technology has also acted as a driver of policy development in offshore jurisdictional claims between coastal nations. Historically, there was a limited capacity for humans to move about the open oceans. Early ocean travelers (Macedonians, Egyptians, Greeks, Romans, Vikings) used small water vessels to move about the coastline. It was only more recently in human history that larger ocean vessels were developed and humans began to move further offshore along the open oceans for exploration, transit, and ultimately resource exploitation. Early western discussions about the ownership of the open ocean came about from the Dutch who had been using sea routes to develop trade with the East. To ensure these routes would remain open for commerce purposes, Dutch legal scholars argued for mare liberum, or the “freedom of the seas.” The concept argued that oceans should remain open for transit purposes of all countries to encourage commerce and help develop the wealth of nations. At this time the seas were seen mainly as highways, meaning the value was in accessing the open oceans for transit and not for the exploitation of resources that existed within the water of the open ocean itself. Further technological advancement brought forth a more refined interpretation of mare liberum, or precisely just how “free” transit over the oceans should be. As ocean vessels became ‘war ships’ armed with cannon and used militarily to advance national interests abroad, the ideas behind complete freedom of transit were refined. The cannon-shot rule was developed (Thomas Jefferson was a proponent) in the late 1700’s as a means of defining the sovereign territory of a coastal state. At the time a cannon fired from an ocean vessel could travel approximately 3 miles. Thus, the cannon-shot rule suggested no ship could travel within 3 miles of a coastal state without the express permission of that nation; the 3 miles from the land was the ‘sovereign’ territory of the nation. There are other examples of technology increasing the capacity of utilizing marine resources (whether that be the sea itself or the things within the sea). As technology has increased capacity to interact with the ocean, coastal nations have developed rules to protect their respective interests in those ocean resources; those nations who have the capacity to exploit resources generally favor the ability to exploit, while coastal nations that do not have the capacity to exploit (or protect their coastal resources) generally favor the protection of coastal resources. The divergence between advanced and developing coastal nations led to the need for an international agreement on these issues, and this resulted in the development of UNCLOS over the past few decades. The results of

Page 96 of 103 UNCLOS are a set of generally applicable rules that are followed by most coastal nations today.

Jurisdictional Rules Under UNCLOS
Recall the following visual representation of zones in our ocean, beginning from a baseline (where the water meets the land) and heading seaward:

These zones are in accordance with the principles established under UNCLOS, meaning that coastal nations that have signed onto UNCLOS adhere to similar zones as described above. There are additional ‘zones’ created in UNCLOS summarized in the following table:

Zone
Baseline

Description
Established by the mean low water mark (MLWM): where the average low water tideline exists at a particular location on the shoreline. This is where all measurements of zonal jurisdiction begin. Area between the MLWM and the mean high water mark (MHWM). The MHWM is the average high water mark at a particular point along a coastline. Thus, the tidelands are, essentially, the intertidal zone area that is submerged under water part of the time (during high tide), and exposed as dry land the other part of the time (during low tide). Measured as 12 miles from the baseline. This area is considered the complete sovereignty of the coastal state,

Tidelands

Territorial Sea

Page 97 of 103 but under UNCLOS conventions, innocent passage of other vessels is allowed in this zone. Measured as 24 miles from the baseline, or 12 miles from the extent of the territorial sea. This zone is established to allow for enhanced security of the coastal state with respect to customs, immigration, and drug interdiction. Thus, vessels operating within 24 miles of a nation are subject to boarding for these purposes. Measured as 200 miles from the baseline, or the extent of the continental shelf if longer than 200 miles. This zone is established to secure the marine resources contained within this area as the property of the coastal state sovereign. The area beyond the exclusive economic zone. This area of the ocean (also known as international waters) is free from individual coastal state ownership and operates, essentially, under the premise of mare liberum, or freedom of the high seas. Waters lying landward of the MLWM. These include coastal features such as bays that extend inland from the normal coastline feature. Thus, even though the bay itself may extend inland, the feature of the bay is not calculated in determining baselines for purposes of moving the zones described above further inland. Special rules apply in determining whether a coastal feature is ‘internal water’ as described under UNCLOS.64 The area beyond the continental shelf that represents the deep sea, generally located in the high seas designated area of the ocean.

Contiguous Zone

Exclusive Economic Zone (EEZ)

High Seas

Internal Waters

Deep Seabed

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The main test for determining a bay feature is the 24-mile semicircle test. The bay must be no larger than 24 miles from tip-to-tip of its mouth (you measure a straight line from both tips at the coastline just before the coastal features begin moving inland). In addition, the area of the water body (the bay itself) must be greater than the measurement from tip-to-tip. Thus, if the measurement of an inland embayment mouth from tip-to-tip is 20 miles, then it meets the first part of the test (less than 24 miles). In addition, if the area of the water body is 25 miles, then it meets the second part of the test (greater than the 20 mile tip-to-tip measurement). Therefore, this water body would be considered internal waters under UNCLOS and excluded from measuring baselines for territorial sea, EEZ, and other measurement purposes. In addition to this, UNCLOS does allow for certain bays, based on historical evidence, to be considered the internal waters of the country. The historical bay claim can be made for areas that do not meet the 24-mile semicircle test, and they must be based on evidence showing sovereignty over the area and acquiescence to such sovereignty by other nations.

Page 98 of 103 These are the main zones of relevance for our discussions of UNCLOS and they represent the starting point from which policy issues are defined and develop. While helping us identify potential policy issues, these zones also represent the foundation upon which policy solutions are determined; by understanding the zoning elements of our ocean, we have the formal rule foundation from which to develop solutions to problems, both proactive and reactive depending on the circumstances.

Policy Issues Under UNCLOS
There are a number of policy issues that are triggered by UNCLOS, many of which are understood in the contextual application (when looking at the detailed facts of the situation and overlaying the legal frameworks established by UNCLOS). We have already discussed the concept of laying out legal lines, and then looking at how these lines help to define policy issues. Early on we discussed this in relation to federalism (conflicts between the federal and coastal state governments of the United States) and the question of resource ownership ultimately resolved by the passage of the Submerged Lands Act (SLA). Another example arose in our discussion of how the management of defined resource ownership is impacted; the context for this discussion was again the state vs. federal roles in marine resource management. Once the SLA resolved marine resource rights (the distribution of marine resources between federal and state ownership), the next issue that arises logically is the management of those distributed rights. What happens when state and federal management priorities come into conflict? We discussed this issue within the context of the Coastal Zone Management Act (CZMA) as a way of understanding the conflicts that can arise between resource user groups. The federal consistency requirement was a policy tool (legitimized as legislation under the CZMA) developed to help resolve such conflicts, at least by providing a framework to aid in the resolution of such conflicts. Like the examples of the SLA and the CZMA at the national level in the United States, UNCLOS provides some frameworks for the resolution of marine resource rights, distribution, and management at the international level, i.e., between coastal nations. While there are literally thousands of examples (case studies) we might use to help us understand the role of UNCLOS, and the legal frameworks it establishes, to help resolve conflicts such conflicts, we will focus our attention here of a few thematic examples to highlight the relationship between policy and law in this setting. Maritime Boundary Delimitation One of the most fundamental results of UNCLOS is the establishment of geospatial boundaries. As described above in the jurisdictional rules section, UNCLOS provides a standardization of property rights in the ocean. Based on the rules contained in physical boundary definition, signatory nations (and non-signatory coastal nations adhering to the UNCLOS rules), the respective rights and obligations of coastal nations are defined with some degree of precision. Of course, we can likely see where such rules have room for interpretation, or otherwise contain some ambiguity based on circumstances encountered. Under certain situations, the maritime boundaries are not

Page 99 of 103 always easy to determine; for example consider the situation where two coastal nations share boundaries that overlap with one another. Canada and the United States, due to their immediate adjacency, share a common maritime boundary that includes overlap between UNCLOS zones. For example, if one logically were to draw out Canada’s exclusive economic zone (EEZ) under UNCLOS rules, its boundary would overlap significantly with the EEZ of the United States. This may not be an issue in areas where the overlap does not result in resource allocation conflicts (where neither side actually utilizes the area of overlap for any meaningful purpose). However, even in such situations (thinking proactively), we do know the relationship between technology and resource utilization: as technological advancements occur, the likelihood of finding uses for marine resource areas also increases. Thus, situations where jurisdictional overlap does not result in issues today does not mean issues will not arise in the future. There are situations where jurisdictional overlap does result in resource ownership disputes. One historical example between Canada and the United States is Georges Bank, a fishing ground in the North Atlantic that lies within the 200-mile boundary of both coastal nations. The area has historically been one where target commercial fish species congregate, and it thus represents a high direct economic value to both nations. Since it lies within the 200-mile EEZ of both countries, each can technically claim full rights under traditional UNCLOS zoning rules. The question for resolution between the coastal nations is how to resolve this potential conflict, and this is where policy options become an important as tools to help in the resolution of conflict, both potential and realized. The options between the countries to resolve the property rights to George’s Bank span from the absurd (at least by today’s standards) to the reasonable. Certainly, each country can claim its right to the resource and then defend this claim by any means necessary, for example by declaring war on the other country. The very idea of Canada and The United States declaring war against one another to protect access to a commercial fishery hopefully seems absurd. Of course it may not seem so absurd if the resource at-stake between the countries was the dominant means by which the country prospered (consider Saudi Arabia defending its claims to oil reserves, the main economic means of wealth creation for the country). But luckily fish, as important as they are, are not sufficient to bring the countries to war. Rather, both countries in this instance allowed their resource claims to be decided by an international tribunal (a judicial body) established under UNCLOS to resolve disputes between countries that are based on jurisdictional claims under the UNCLOS regime. The international tribunal is a mechanism created under UNCLOS for signatory countries (and others willing to accept the jurisdiction, and thus judgment, of the tribunal) to resolve disputes as identified above. The factors used to resolve the U.S. / Canada dispute on George’s Bank were based on a mix of historical use and equitable considerations between the countries. Ultimately the tribunal was able to create a shared governance of the resource where each country was given access to a certain portion of

Page 100 of 103 the area thus resolving the issue by carefully demarking property rights. Once this was done, any additional shared use of the resource would be based on bilateral agreements between Canada and The United States. Creating Consensus in the International Field It is important to point out here that the United States is not a full member of UNCLOS; the U.S. has failed to ratify the treaty in the United States Congress. As such, the U.S. submits itself to the tenets of UNCLOS based on a mix of customary law and case-bycase analysis. For most of the issues related to boundaries, the U.S. follows UNCLOS; it is in other areas that the U.S. is hesitant to submit itself to the full set of provisions contained in the international treaty. For example, UNCLOS contains provisions that may impact military secrets and also the sharing of technological innovations with other countries. While not determinative for the purposes of our discussion here, it is worthwhile to consider the policy implications of a country that yields aspects of its sovereignty when signing an international agreement like UNCLOS. In yielding sovereignty the country gives up some of its freedoms through obligations, and the question from a policy standpoint may be what does the sovereign yield in rights (benefits) when accepting these obligations? The calculus used to determine the relative benefits and costs of yielding sovereignty often changes as circumstances change. For example, a militarily dominant coastal nation may be less willing to yield certain powers at sea because, on balance, the nation is giving up more than it is getting in return.65 Meanwhile, a less economically advantaged coastal nation may wish to adopt universal provisions that protect the assets of coastal nations. This is particularly true where the coastal nation is unable to defend its marine resources through a lack of finances or sophistication. In this simplified example we can see how international agreements often must serve multiple interests, and in doing so can marginalize those who sit at either ends of these interests. Understanding this point helps us identify another aspect of policy in the international arena. When creating a legal instrument that requires complete voluntary adoption for enforcement purposes, and further when adoption only matters if the majority of sovereign nations agree, how does one balance the varying interests of potential adopters to create an instrument that is capable of being adopted by the majority of target nations? We may find that the end product is something that is necessarily imperfect when viewed from any one interest. Consider the International Whaling Commission (IWC) discussed earlier in the course. Whaling is an activity that is favored (or at least was) by most of the participants to the agreement. Thus, it should come with little surprise (once this is understood) that the
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This is particularly true if the coastal nation can pick and choose its rights and obligations under international law through the use of customary law, i.e., adopting the more palatable provisions of the international agreement through custom, but specifically rejecting provisions that are less palatable through overt actions like not signing the agreement and continually acting in violation of the provision.

Page 101 of 103 organization is interesting in resuming whaling if and when population numbers increase to acceptable levels. It should also make some sense that certain signatory nations, like Japan, are engaged in the yearly take of whales for scientific purposes. Much controversy exists around Japan’s continued hunting of certain whale species for what it terms science. Many believe (and the evidence does seem to clearly support this view) that Japan is using the scientific research exception under this international agreement to sidestep the current moratorium on whaling. Of course, if we think about the purpose of the agreement itself, and the fact that Japan is a voluntary member to the agreement, then we might see Japan’s use of the exception as a necessary means of maintaining Japan’s acquiescence in the international agreement. Indeed, it may be that the current ban on whaling (with accepted exceptions) is the best that an international agreement can do at this time, particularly when whaling can occur in the high seas by countries, outside of any particular jurisdiction other than that of the ‘flag state’ of the vessel. The point here is that consensus is a key ingredient to international agreements, and because sovereignty prevents forced consensus, it must be built through voluntary measures among and between nations. Some see this as a major limitation of international agreement. However, if we look at UNCLOS, we see an example of an international agreement that works quite well when it focuses on interests in such a way that agreement is seen as an advantage among signatory nations. One area of such agreement is that of boundaries. Because nations see advantage in claiming boundaries (as defined under UNCLOS) there is general agreement about those boundaries. Indeed, those boundary lines contain both restrictive characteristics (keeping nations out) and access characteristics (allowing nations to move in many areas of the ocean). Thus, when incentives align there is the greatest chance for agreement and success. Failures in Management Techniques Often the creation of boundaries can be seen as successful in helping to create better management of marine resources. However, there are examples of failure. Recalling our property rights characteristics from the early figure in this section, we can see that from a global perspective, the boundaries established under UNCLOS help to create the privatization of resource areas (for example, the territorial sea of each nation). However, the boundaries also help to create (or reinforce) open access areas, like the high seas, that can end up creating common pool resource characteristics as species move from the more defined property right areas to these less defined property right areas. This has happened in a number of instances, sometimes causing strong disputes between nations. Consider a scenario where a nation has a valuable resource habitat sitting just within its 200 mile EEZ. Assume that the resource is mobile, meaning it can move between the EEZ and the high seas. When the resource is in the EEZ it is the sole property of the coastal nation. However, when the resource ‘swims’ past the 200-mile limit of the EEZ, its property right characteristics change from the property of the coastal nation to, well, no one’s property (at least when in the high seas); the only factor effecting its property right status in the high seas will be if it is captured, as we recall that capture transmutes

Page 102 of 103 the ownership right of the fish to the person who captured it so long as that person has the legal right to do so. In the situation described above, essentially any person would have the legal right to capture the fish in the high seas because the fish is not owned by anyone while in that zone.66 The coastal nation decides to protect the resource habitat by shutting down the fishery; it worries that it has overfished the resource and wants the population numbers to rebound. Since the spawning and breeding habitat of the fish lies just inside the EEZ, new hatchings of fish as well as mature members of the species congregate in the area. In fact, many of them tend to move between the EEZ and the high seas. Other countries learn of this and move their fishing vessels to the border of the EEZ (just outside in international waters). These other countries begin fishing just outside the border, capturing the fish the coastal nation was intending of protecting. Now, does the coastal nation simply continue its prohibition of fishing the target species? Or does it begin fishing against its will because the other fishers are waiting just outside the EEZ property line to take the fish when they cross the border? The example highlight the conundrum created through different kinds of property rights. The high seas designation allows property characteristics to change from the private property of the coastal nation to the common pool resource of whoever ends up utilizing the high seas.67 Because the coastal nation cannot exclude the other nations from the resource when it moves into the high seas, there is little incentive created to conserve the resource. We can see how this same situation can play out in shared maritime boundaries, like in the Canada / United States example of George’s Bank discussed earlier. If the U.S. decides to protect a target species from fishing on George’s Bank and that species crosses over into Canada’s territory, then the success of that protection will depend on Canada’s willingness to also protect the species; if Canada chooses not to protect the species, then the U.S. may have little incentive to do so. From a policy standpoint the importance of international agreements becomes heightened. While UNCLOS provides a framework that allows for ‘tragedy of the
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It is possible that a person is restricted from capturing the fish while in the high seas. The reason for the restriction does not come from the high seas itself (there is no ownership), but rather from legal restrictions that might exist on the vessel based on the laws from its state of origin (its ‘flag’ state). For example, a vessel located in the high seas that is berthed and registered in the United States would not be able to hunt marine mammals in the high seas (without a special permit) because although the U.S. does not own the marine mammal when it is in the high seas, the vessel must abide by all laws of its flag state, the U.S. in this case. Since the U.S. has a law against harming marine mammals (the MMPA), the vessel is restricted from taking the marine mammal due to its obligations to its home country under the law of that country (not the laws that exist on the high seas).
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This suggests the property right characteristics are changing from high divisibility and high excludability (private) to high divisibility and low excludability (common pool).

Page 103 of 103 commons’ outcomes (by creating the commons on the high sea), other international frameworks can be established to deal with commons issues. Thus, while there certainly are limits on the ability to create effective international regimes, there are also opportunities for these kinds of agreements to help aid in policy development in the international arena. Understanding these dynamics is the starting point to a deeper appreciation of marine policy and law issues as they exist and develop at the international level. END OF SECTION.

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