ing values of the nation. The modifications have increasingly provided more detailed mandates for management, yet the governance structure has been largely untouched. The latest modifications and amendments require that fishing be at or below the optimum yield and that depleted stocks be recovered in no more than 10 years. Moreover, MSFCMA mandates that fisheries be managed with ecosystem considerations, prevent bycatch, and protect essential fish habitat.
Fishing impacts non-targeted organisms both directly and indirectly: directly by entangling them in nets, or indirectly by diminishing their prey and destroying marine habitat. NMFS must also comply with a number of acts that ensure proper procedures are followed, including the National Environmental Policy Act (NEPA), the Regulatory Flexibility Act (RFA), and the Administrative Procedure Act (APA). Thus, NMFS must achieve a delicate balance as it manages marine fisheries under overlapping and sometimes divergent laws. On one hand, these laws emphasize the importance to the nation in using these important renewable resources; on the other hand, the laws emphasize the importance of rebuilding depleted stocks and protecting threatened and endangered marine animals.
Not surprisingly, NMFS regulations are contentious, given the complexity of managing marine fisheries today. In the past 10 years, the National Research Council has undertaken a dozen studies of marine fisheries at the behest of Congress and NMFS itself. A review of these studies shows that many of the same issues and recommendations are revisited in study after study. This pattern occurs not primarily because Congress and NMFS have ignored the recommendations in these studies, but because these problems are difficult to rectify. The contentiousness of the regulations among stakeholders is seen in the history of the litigation. Litigation has increased dramatically since the enactment of the Magnuson Fishery Conservation and Management Act (MFCMA) in 1976 and the Sustainable Fisheries Act in 1996 (which significantly amended the MFCMA). As of January 2002, there were in excess of 110 legal cases pending against NMFS (NMFS, personal communication). Though NMFS wins many lawsuits based on the strength and quality of its science, lost cases are a special concern because they may indicate where NMFS’s science and policies are vulnerable to future legal challenge, as well as where NMFS management of marine fisheries may be failing.
Based in part on its concern over the dramatic increase in recent lawsuits against NMFS, Congress requested in 2001 that the National Academy of Public Administration provide “a thorough review of NMFS’s legal