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Fishery Council, With Broad Support, Proposes Closing Arctic Ocean to Commercial Fishing Until Impacts Are Better Understood

April 3, 2009

In what may be the first of many precautionary federal actions, the North Pacific Fishery Management Council (“the Council”) has recommended the closure of approximately 150,000 square nautical miles of United States territory in the Arctic Ocean to commercial fishing until the effects of climate change and the Arctic ecosystem are better understood. If approved by the Secretary of Commerce, the new Arctic Fishery Management Plan (“FMP”) will close all federal waters in the Arctic Ocean to commercial fishing for any species of finfish, mollusks, crustaceans and all other forms of marine animal and plant life.[1] The FMP does not foreclose subsistence or recreational fishing or state-managed fisheries. After two years of study and extensive outreach to Alaska Native and regional communities, the Council’s action responds to different and changing ecological conditions in the Arctic, including loss of seasonal ice cover and warming trends in ocean temperatures, and will prohibit commercial fishing until information may become available that would allow sustainable management of Arctic fisheries. The FMP is the latest step in the development of new U.S. regulatory policy for managing Arctic resources in light of the challenges and opportunities posed by climate change.

The Arctic Ecosystem

United States territory in the Arctic Ocean encompasses two contiguous seas off of the coast of Alaska, the Beaufort Sea and the Chukchi Sea. The Chukchi Sea is relatively warm and shallow with depths generally under 60 meters. It is ice covered for about 8 months of the year, with ice retreat occurring in June and July and returning by October, and is generally believed to be more productive than the Beaufort Sea. The Beaufort Sea, characterized by barrier island-lagoon systems, is ice-covered for up to 9 months of the year.[2] This seasonal ice cover directly affects the distribution and annual movement patterns of marine mammals and birds, and spring ice melts create highly productive estuarine-like near shore areas where fish, birds, and waterfowl flourish.[3]

There are currently no commercial fisheries in the Arctic. Little is understood about fishery resources in the Arctic, and data are scarce for estimating the abundance and biomass of Arctic fishes.[4] Very little is known about marine fish distribution or habitat use in the winter; anadromous fish such as salmon overwinter in unfrozen pockets of fresh or brackish water in rivers and river deltas.[5] Fifteen marine mammal species are known to be present in the proposed management area, including eight species of whales, four species of seals, Pacific walrus, polar bears and harbor porpoise.[6]

Scientists have concluded that the Alaskan Arctic environment is changing, with warming trends in ocean temperatures and changes in seasonal ice conditions, including summertime ice losses of up to 40% compared with the 1979-2000 average, potentially expanding the ranges of fish species that are commercially fished elsewhere in Alaska.[7] Some scientists predict that sea ice losses may fundamentally transform Arctic marine food webs, inducing mobile species to migrate northward in search of food, and destabilizing predator-prey relationships.[8]

The U.S. Geological Survey recently published a study finding that coastal erosion along the Beaufort Sea has more than doubled since the middle of the century and concluding that declining sea ice, increasing summer sea-surface temperature, rising sea level, and increased wave action and storm power are potentially responsible.[9] The Council acknowledged that it “does not know the rate and geographic extent to which these [climate change] phenomena are unfolding, and whether the rate of change observed in recent years is likely to continue. In the face of this considerable uncertainty, the Council is choosing to be precautionary and thus, is proposing to adopt an Arctic FMP that closes the Arctic to commercial fishing until the state of knowledge can ‘catch up’.”[10]

Emerging U.S. Arctic Policy

The Council’s action is part of increasing interest in the Arctic and its resources on the part of federal policy makers. In 2007, Congress passed a joint resolution calling for the initiation of international negotiations to establish agreements for “managing migratory, transboundary, and straddling fish stocks in the Arctic Ocean” and establishing a new regional international fisheries management organization.”[11] Until such agreements are in place, “the United States should support international efforts to halt the expansion of commercial fishing activities in the high seas of the Arctic Ocean.”[12] The resolution was signed into law by President Bush on June 3, 2008.[13]

On January 9, 2009, President Bush issued a new Arctic Region Policy (National Security Presidential Directive 66) requiring the United States to:

  • Pursue marine ecosystem-based Arctic management;
  • Intensify efforts to develop scientific information on the adverse effects of pollutants on human health and the environment and work with other nations to reduce the introduction of key pollutants into the Arctic.
  • Develop ways to address expanding commercial fisheries, including through international agreements; and
  • Continue to identify how to conserve, protect and sustainably manage Arctic species, and ensure adequate presence to safeguard living marine resources, taking into account changing species ranges or distribution.[14]

These existing policies do not explicitly address whether the Arctic should be opened to oil and gas activities or other forms of industrial development if climate conditions make such development feasible. Spurred by “deep concern for the health of America’s Arctic”, nearly seventy Democrats in the House of Representatives wrote to President Obama on March 24, 2009, urging the Administration to “take swift and decisive action to implement science-based precautionary management for this unique and fragile portion of our natural heritage.”[15] The members called for establishment of an inter-agency task force to develop a comprehensive conservation and energy plan, and pending completion of the plan, for the Administration to “take a precautionary approach to managing the Arctic by suspending the expansion of industrial activity, including offshore oil and gas leasing, exploration and development (including such activities initiated and approved by the Bush Administration), additional shipping, commercial fishing, and mining.” In 2008, the Interior Department deferred leasing on several hundred thousand acres around the Theshekpuk Lake Special Area in the National Petroleum Reserve- Alaska for at least a decade but did not preclude later development.[16]

Reaction to the Arctic FMP

Public comment on the proposal from local and Native Alaskan communities generally supported adoption of the FMP:

Most residents supported closing the Arctic to commercial fishing, particularly because of concerns over the potential effects of fishing on subsistence activities and subsistence animals such as seals and whales. Residents are concerned over climate warming, and how this might exacerbate fishery effects on the Arctic ecosystem. Other residents, however, supported commercial fishing, and indicated their continued support only if local residents were given the preferential opportunity to participate in any such fisheries.[17]

The Council’s ban on commercial fishing was supported by scientists, the commercial fishing industry, and environmentalists. Writing in support of the FMP, a group of forty-three scientists stated, “Until the rate and likely duration of sea ice losses as well as the ensuing ecosystem responses are better understood, closing the U.S. Arctic to commercial fishing is a prudent measure to avoid compounding the already considerable ecosystem stresses in progress.”[18] The Marine Conservation Alliance, a fishing industry group, agreed that climate change is significantly affecting the Arctic, and endorsed the Council’s action “as a precautionary measure [that] gives us the opportunity to conduct the scientific review necessary to develop a plan for how sustainable fisheries might be conducted in the Arctic in the future.”[19] The conservation group Oceana pointed to the FMP as an example for other countries to look to as they manage shipping and fisheries.[20]

Next Steps

The proposed FMP now goes to the National Marine Fisheries Service for review, and will be approved or disapproved by the Secretary of Commerce pursuant to the Magnuson-Stevens Fishery Conservation and Management Act.[21] When the plan is approved by the Secretary, as seems likely, no foreign or domestic commercial fishing will be allowed in the U.S. waters of the Arctic Ocean, and the precedent for conservative management of the region’s resources will have been set.

For further information about fisheries management issues, please contact any member of the firm’s Natural Resources practice group.

[1] The Arctic Management Area established by the plan would be all marine waters in the U.S. exclusive economic zone of the Chukchi and Beaufort Seas from 3 nautical miles offshore the coast of Alaska or its baseline to 200 nautical miles offshore, north of Bering Strait and westward to the 1990 U.S./Russia maritime boundary and eastward to the U.S./Canada maritime boundary. National Marine Fisheries Service (“NMFS”), Public Review Draft, Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis for the Arctic Fishery Management Plan and Amendment 29 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (January 2009) (“Draft EA”) at iii.

[2] North Pacific Fishery Management Council, Public Review Draft, Fishery Management Plan for Fish Resources of the Arctic Management Area (January 2009) (“Draft FMP”) at 39.

[3] Id.

[4] Draft FMP at 9.

[5] Draft FMP at 40.

[6] Draft EA at vi.

[7] Draft EA at 1.

[8] Letter to Eric Olson, Chair, North Pacific Fishery Management Council from Paul K. Dayton et al. dated January 27, 2009 (“Dayton Letter”) at 1-2.

[9] B. Jones, et al, Increase in the rate and uniformity of coastline erosion in arctic Alaska, available for a fee at http://www.agu.org/journals/gl/gl0903/2008GL036205/.

[10] Draft EA at 7.

[11] 110th Congress, SJ 17 RS (Oct. 4, 2007).

[12] Id.

[13] Public Law 110-243.

[14] Available at http://www.fas.org/irp/offdocs/nspd/nspd-66.htm (last visited 3/25/09).

[15] Letter to President Barack Obama from Representatives Jay Inslee, Edward Markey, Betty McCollum et al. dated March 24, 2009.

[16] E&ENews PM, May 16, 2008.

[17] Draft EA at 9 - 11.

[18] Dayton Letter at 2.

[19] Wesley Loy, Anchorage Daily News, Council outlaws Arctic fisheries, February 7, 2009.

[20] Id.

[21] 16 U.S.C. §1801 et seq.

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