Mark is one of the nation’s foremost investigative journalists. He teaches science at UC Berkeley’s Graduate School of Journalism and has written frequently about the public trust doctrine.
A proposal to open our coastal water to intensive fish-farming raises thorny environmental and legal questions.
| by Mark Dowie
The United States currently imports about 75 percent of the seafood Americans eat, adding $7 billion to our trade deficit last year. This is something the Bush administration would very much like to change, and it is the president’s stated goal to reduce the nation’s seafood trade deficit to zero by 2025. Given the country’s growing population and its reliance on stock from the severely over-fished waters off America’s coasts, this is no small challenge.
One administration solution is to lease vast regions of the Exclusive Economic Zone (EEZ) – waters between three and 200 miles offshore – to industrial fish farmers. As they do elsewhere in the world, these high-tech aquaculturalists would suspend huge cages into the cool, calm water beneath the waves and surface currents, known to oceanographers as the pelagic zone. Salmon, cod, amberjack, flounder, halibut, red snapper, threadfin and cobia will be raised in the cages, like cattle in feedlots, fed ground fishmeal robotically from rafts on the surface. When the fish are grown and ready for market their cages will be raised to the surface for harvest.
The administration calls this plan Open Ocean Aquaculture and the National Oceanic and Atmospheric Administration (NOAA), a branch of the Department of Commerce (DoC), last year drafted a bill that would create a legal framework for the venture. The National Offshore Aquaculture Act (S.1195), introduced by Senators Ted Stevens (R-AK) and Daniel Inoyue (D-HI) as a courtesy to the administration, cleared the White House Office of Management and Budget (OMB) and died in committee. NOAA has revised the bill and sent it back to OMB. In the meantime President Bush has kept the initiative alive with a $3 million promotional appropriation to NOAA. The bill is NOAA’s top legislative priority for the current Congressional session. It’s the number-five issue at DoC.
A battle is brewing between critics of the NOAA plan, who call it “Ocean Ranching,” and its supporters who have dubbed it “The Blue Pastures Initiative.” Environmentalists argue that ocean aquaculture is already creating serious ecological challenges with escaped fish (some of them transgenic), parasite and disease transfer from farmed to wild stock, massive sewage discharge and other unsustainable usage of marine resources. Relocating the farms to the open ocean will also remove them from state control and limit public scrutiny.
At hearings held before the Senate Committee on Commerce, Science and Transportation, serious environmental questions were raised about open ocean aquaculture. Escaped fish are particularly problematic as they are capable of interbreeding with and compromising the gene pool of wild stock. They can also overtake habitat. Atlantic salmon now run wild in the Pacific. And according to a recent article in Science magazine, mercury, PCBs and other waterborne toxins are found in aqua-farmed fish at levels three to five times those in wild fish, a consequence of feeding the captives contaminated fish meat. Water pollution from pathogens, antibiotics and nitrogen are also expected.
Supporters of the initiative acknowledge some of those problems, but claim they will be greatly reduced by moving fish farms out of coastal waters, which are more environmentally sensitive than the open ocean. NOAA claims to be aware of the hazards of aquaculture and has promised to include environmental impact analysis and regulatory oversight in the proposed legislation, alongside provisions to streamline 10-year site permits through a “one-stop permitting process.”
If a bill ever passes Congress, whatever NOAA comes up with will certainly be tested in federal court. There jurists will grapple with property and stewardship questions in the legally uncharted pelagic. According to Alison Rieser, a marine lawyer at the University of Maine, “There is no clear legal basis for granting property rights that are needed to protect the large investments necessary to build and operate offshore aquaculture facilities in the open ocean.”
A Venerable Doctrine
At the heart of this issue lies the question of whether or not the oldest surviving common law in history, the Public Trust Doctrine, applies to this issue. Can a doctrine that for 15 centuries defended the shorelines of Europe and then North America as “common to all mankind” be invoked by defenders of the ocean? American coastal waters have always been regarded as an element of the national commons, protected by government as a public trust, to be left open for navigation, recreation and the licensed catching of wild fish – which also have long been established as a public asset. What right, plaintiffs will ask, does the federal government of the United States have to lease ocean water to anyone, particularly if doing so could harm fish in the rest of the sea?
The notion of a public trust has a venerable history. It was first proffered in 528 AD, when the Roman Emperor Justinian decided to condense the unpublished rules and edicts handed down by his predecessors and create a unified code of imperial law. A year later, 10 legal experts delivered the Codex Justinianus, to which the emperor then added an idea expressed by the jurist Marcius two centuries earlier: By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.
Since then, the Public Trust Doctrine has percolated through centuries of war, successor empires and colonization. As English, French and Spanish kings built their empires, the doctrine was adopted as common law. When new American states joined the original 13 colonies they too were bound by a common law that granted state governments sovereign rights to common land and sovereign responsibility for its care. The idea of the public trust was synonymous with America’s promise of freedom. Several states eventually wrote some form of the ancient code directly into their constitutions. For example, Article 1, Section 27 of the Pennsylvania State Constitution says:
The people have a right to clear air, pure water and to the preservation of the natural, scenic, historic, aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustees of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.
In early American history the doctrine was used almost exclusively to protect the public’s interest in one very vital aspect of the commons: water. Just as Justinian had declared, navigable water, whether in the sea or flowing to it, was, along with shorelines, beaches and river bottoms, the common property of the nation’s citizens. Courts ruled that it was owned by everyone and no one at once, an unwritten easement protected by the water’s steward – the state. In the years that followed, American courts, state and federal, even the U.S. Supreme Court, upheld that interpretation.
The landmark public trust case occurred in 1892 when the U.S. Supreme Court held in Illinois Central Railroad vs. Illinois that a state legislature could not grant ownership of land under navigable water to a private party, in this case the railroad, which had been granted, fee simple, a thousand acres of shoreline and underwater land – the entire waterfront of Chicago.
Although water and shorelines have been the most frequent beneficiaries of public trust protection, the doctrine has become amphibious. Air, forests, public lands, natural beauty and cultural artifacts have recently been defended as common assets worthy of public trust protection. The open ocean, on the other hand, is considered a global commons, protected by the Law of the Sea and other international agreements. But there is a long ribbon of ocean water, 200 miles wide, hugging the coast of every continent, in which ownership rights and stewardship responsibility is still unclear.
The Law of the Sea Treaty, now signed and ratified by 158 nations, extends the boundary of all signatory nations 200 miles from their shoreline. The enormous wealth of oil, gas, minerals and food stuffs in and beneath the waters of these Exclusive Economic Zones makes the word “Economic” an appropriate part of their title – an invitation to commerce and development. The United States’ EEZ, which includes Micronesia, covers 3.4 million square miles, a larger portion of the earth’s surface than the country’s land mass.
President Bill Clinton signed the Law of The Sea Treaty in 1994, but in deference to ocean mining interests, which sought unimpeded access to the entire ocean floor, Jesse Helms, then Chairman of the Senate Foreign Relations Committee, refused to hold hearings that might have led to ratification.
There are other compelling reasons, strategic and environmental, not to ratify the treaty. So it may never happen. However, stewardship of the zone it created will certainly become a factor in the legal contest that awaits ocean fish ranching, as will the Public Trust Doctrine. Ratified or not, the treaty defines “EEZ,” which applies to all nations, and is an area which the federal government clearly acknowledges by name in all its reports and studies, and will surely include in its draft legislation. If they don’t invoke the zone by name, and site the law of the sea as its creator, they risk losing all rights to it.
There is no question that the doctrine, as interpreted by courts in most coastal states, allows the private use of state owned public trust land and water for aquaculture within the three-mile limit. So long as the activity improves the public welfare and does not interfere with citizens’ enjoyment of the resources being used. Courts have also affirmed that “lands,” as defined by the doctrine, encompass the river bottoms and sea beds of navigable waters out to the three mile limit.
The U.S. Supreme Court has upheld Public Trust Doctrine four times in the nation’s history, but in each case it has been protecting a state’s use of the doctrine. It has never claimed it as federal common law, which could apply in ocean waters beyond the states’ three-mile limit. That doesn’t necessarily mean that the Public Trust Doctrine is not federal, it only means it has never been established as such. And just because courts have never applied the doctrine to the EEZ doesn’t mean they can’t.
As the Public Trust Doctrine has been used so effectively to protect public access to and the ecological integrity of American common assets, on and off shore, it seems imperative to invoke it in the EEZ. Here is how the case for a federal doctrine might be argued.
Because its legal system was built on British common law, which included the Public Trust Doctrine, the United States government held an implied public trust obligation over navigable waters in each territory until it was granted statehood. Each new state, upon entering the Union, assumed its own obligation over the same waters. But even after all territories had become states, the federal government still maintained public trust responsibility over oceanic shorelines until coastal state control was extended three miles from the shoreline by the Submerged Lands Act of 1953. The Law of The Sea Treaty did not exist, so the U.S. federal government controlled the next nine miles off shore, out to the 12-mile limit described by international agreement as the territorial waters of all nations. The rest was regarded as open ocean, open to all travelers and fishermen.
In light of this history it should be assumed that the federal government still bears public trust responsibility over navigable territorial waters – and the sea bed below them – between the three- and 12-mile limits and now into the EEZ reaching out another 188 miles from the coast. If this is a fair assumption, then it would suggest that the Public Trust Doctrine, accepted by the original thirteen colonies without argument, and passed by federal permission to each new state, remains a U.S. government doctrine, at least as it applies to navigable federal waters between the three- and 200-mile limits.
Federal courts have ruled that the Public Trust Doctrine does not apply outside “the territorial sea” but have not defined where territorial seas begin or end – at the three-, 12-, or 200-mile limits. If the doctrine is accepted as relevant and applicable in the EEZ, the specter of public trust rights will make it very difficult for NOAA or any agency to entice capital intensive sea farmers into the pelagic zone, because it would be so easy for environmentalists and other political opponents to defeat them in court. Aquaculture corporations will want stronger property rights than the government can legally offer them under the doctrine of public trust.
Opponents, including commercial fishers of wild stock, who are beginning to see themselves as the planet’s last hunter-gatherers, are expecting government litigants and their industry supporters to contest any mention or invocation of public trust in the open ocean. Meanwhile advocates of the commons see an inviting opportunity to affirm a federal Public Trust Doctrine that extends at least 200 miles off shore and use it to challenge the further privatization of what they call “the blue frontier.”
“When you fence off large parts of the sea you?re also taking on a responsibility for its protection,” says David Helvarg, President of the Washington, DC-based Blue Frontier Campaign. “Privatizing the frontier was a bad idea when Congress was selling off public lands to railroad trusts for pennies on the acre. It’s a worse idea today as we’re only beginning to explore and discover the true values of our nation’s largest public asset.”
Protecting any public resource from harmful commercial use enhances the benefits for all who seek access to it, particularly other commercial users. Thus the ancient common law notion of public trust, a doctrine which has been used so effectively over the centuries in defense of navigation, fishing, recreation and ecological integrity, should be tossed into the sea and allowed to drift at least 200 miles offshore in defense of a common asset we cannot afford to lose.
Mark Dowie teaches science and environmental reporting at the University of California-Berkeley Graduate School of Journalism. This essay was originally published in the spring 2007 issue of Waterkeeper magazine.