Content uploaded by Sara M. Maxwell
Author content
All content in this area was uploaded by Sara M. Maxwell on May 31, 2014
Content may be subject to copyright.
125
Dynamic Ocean Management:
Integrating Scientific and Technological
Capacity with Law, Policy, and
Management
Alistair J. Hobday,*A Sara M. Maxwell,B Julia
Forgie,C Jan McDonald,D Marta Darby,C Katy
Seto,E Helen Bailey,F Steven J. Bograd,G Dana K.
Briscoe,B Daniel P. Costa,H Larry B. Crowder,B,I
Daniel C. Dunn,J Sabrina Fossette,G Patrick N.
Halpin,J Jason R. Hartog,A Elliott L. Hazen,G
Ben G. Lascelles,K Rebecca L. Lewison,L
Gregory Poulos,M & Ann Powers
* The first two authors contributed equally to this work.
N
Acknowledgements: The Authors appreciate the support of sponsors for the Stanford
Dynamic Ocean Symposium and the advice from the editors of this special issue.
Comments from two anonymous reviewers and the editorial team considerably improved
the focus of this paper. The Center for Ocean Solutions contributed support for the
development of this paper.
A CSIRO Wealth from Oceans Flagship, Hobart, Tasmania, Australia
B Stanford University, Hopkins Marine Station, Pacific Grove, CA, USA
C J.D. Candidate 2014, Stanford Law School, Stanford University, Stanford, CA, USA
D Faculty of Law, University of Tasmania, Hobart, Tasmania, Australia
E Environmental Science, Policy, and Management, University of Cal., Berkeley, CA, USA
F University of Maryland Center for Environmental Science, Chesapeake Biological Labor-
atory, Solomons, MD, USA
G NOAA Sw. Fisheries Sci. Ctr., Environmental Research Division, Pacific Grove, CA, USA
H Ecology & Evolutionary Biology, University of California, Santa Cruz, CA, USA
I Center for Ocean Solutions, Stanford University, Monterey, CA, USA
J Duke University Marine Laboratory, Beaufort, NC, USA
K BirdLife International, Cambridge, UK
L Institute for Ecological Monitoring & Management San Diego, State University, San
Diego, CA, USA
M Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA, USA
N Pace Law School, White Plains, NY, USA
126 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
The ocean is a dynamic environment with ocean currents and winds
moving surface waters across large distances. Many animals that live in
the ocean, particularly in offshore regions, are mobile in space and in time,
as are most human users. Spatial management responses have typically
partitioned the ocean into different regions with fixed management
boundaries. In some regions a particular activity may be forbidden, in
another it may be permitted but regulated, and in others it may be allowed
without any regulation. In contrast, dynamic ocean management (DOM)
changes in space and time in response to the shifting nature of the ocean
and its users. DOM techniques have been applied in a limited number of
situations around the world—notably for fisheries—to regulate or restrict
the capture of a particular marine species. DOM requires scientific,
technological, management, legal, and policy capacity across a range of
elements. The article outlines seven of these elements and describes
requirements and challenges for their implementation. Specifically, the
elements considered are: (1) tools and data collection, (2) data upload and
management, (3) data processing, (4) data delivery, (5) decision-making,
(6) implementation, and (7) enforcement. Not all elements may be required
and not all management, policy, and legal issues will be relevant to all
applications. However, these elements represent major considerations in the
application of DOM. Overall, we find that the scientific and technological
capacity for DOM is strong but there are a range of underutilized policy
applications. We give examples of how these policies could be expanded to
provide for a broader application of dynamic ocean management. There are
distinct regional variations in the capacity to implement these elements
whether on a voluntary or compulsory basis. To use DOM effectively, the
science and technology required for DOM needs to be better integrated with
the enabling policy.
I. INTRODUCTION .......................................................................... 127
II. SEVEN ELEMENTS SUPPORTING DYNAMIC OCEAN
MANAGEMENT ............................................................................ 131
A. Element 1: Data Collection: Scientific and Technological
Issues ................................................................................. 134
B. Element 2: Data Upload and Management: Scientific and
Technological Issues ........................................................ 137
C. Element 3: Data Processing: Scientific and Technological
Issues ................................................................................. 139
D. Element 4: Data Delivery: Scientific and Technological
Issues ................................................................................. 141
1. Legal and Management Challenges Associated with
2014] DYNAMIC OCEAN MANAGEMENT 127
Data Collection and Management Systems ................. 142
2. Privacy and Confidentiality ......................................... 142
3. Ownership and Intellectual Property Rights.............. 145
4. Use of New Data Collection Technologies ................. 147
5. Animal Ethics ............................................................... 148
E. Element 5: Decision-making Processes .......................... 149
1. Scientific and Technological Issues ............................ 149
2. Legal Issues .................................................................. 152
F. Element 6: Implementation ............................................ 155
1. Scientific and Technological Issues ............................ 155
2. Legal Issues .................................................................. 156
G. Element 7: Enforcement and Compliance .................... 156
1. Scientific and Technological Issues ............................ 156
2. Legal Issues .................................................................. 158
III. IMPLEMENTING THE SEVEN ELEMENTS OF DYNAMIC
MANAGEMENT ............................................................................ 160
A. Capacity for Dynamic Ocean Management ................... 160
B. Sustainability of Dynamic Ocean Management ............. 161
IV. CONCLUSION .............................................................................. 163
I. INTRODUCTION
The ocean is a dynamic environment with currents, winds, and
temperatures changing over a range of time and space scales. Fish,
seabirds, marine mammals, turtles, and most human users respond
to this varying environment by seeking or following favorable
conditions on daily, seasonal, and annual timeframes. Intrinsic
inclusion of the dynamic nature of the ocean and of the
interactions between dynamic human activities and marine
resources in management has given rise to a new form of
management, dynamic ocean management. We define dynamic
ocean management (DOM) as management that changes in space
and time in response to the shifting nature of the ocean and its
users based on the integration of current biological,
oceanographic, social, and/or economic data. We argue that DOM
is a valuable complement to existing static management
approaches because the human-environmental system we are
attempting to manage is dynamic, and that DOM is particularly
useful in developed countries where technological advances
enhance effectiveness. DOM provides an alternative approach that
128 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
can overcome some problems found with coarse-scale, fixed spatial
management of marine species.1
To date, DOM approaches have been used in offshore surface
waters to manage marine species affected by human activities such
as bycatch.
2 But DOM’s application could extend to a broad array
of human activities in the ocean including military operations,
alternative energy sources (such as wind, solar, and tidal energy),
and oil and gas production. DOM can take a number of forms.
Fisheries management areas may change in space or time,3 and
marine protected areas may account for dynamic oceanographic
processes, such as seasonal presence of fronts and eddies.4 It may
also incorporate non-spatial elements such as fishing quotas that
vary over time.5
The DOM approach is attractive for a range of situations
because its restrictions tend to be smaller in spatial extent than
under static area management approaches, which reduces conflicts
with other users. In particular DOM can reduce conflicts arising as
a result of competing objectives in ocean management.
6
1. See Hedley S. Grantham et al., Accommodating Dynamic Oceanographic Processes and
Pelagic Biodiversity in Marine Conservation Planning, 6 PLOS ONE 1, 9 (2011) [hereinafter
Grantham et al., Dynamic Planning] (noting that dynamic protected area systems could be
used as an alternate approach to fixed-spatial protected areas for species whose recruiting
and spawning areas changed with time).
For
instance, protecting mobile marine species with static management
approaches may require restricting human activity across large
2. See Alistair J. Hobday et al., Seasonal Forecasting of Tuna Habitat for Dynamic Spatial
Management, 68 CAN. J. FISHERIES & AQUATIC SCI. 898, 905-07 (2011) [hereinafter Hobday
et al., Seasonal Forecasting]; Evan A. Howell et al., TurtleWatch: A Tool to Aid in the Bycatch
Reduction of Loggerhead Turtles Caretta caretta in the Hawaii-based Pelagic Longline Fishery, 5
ENDANGERED SPECIES RES. 267, 275-76 (2008).
3. See Grantham et al., Dynamic Planning, supra note 1, at 2; Edward T. Game et
al., Dynamic Marine Protected Areas Can Improve the Resilience of Coral Reef Systems, 12 ECOLOGY
LETTERS 1336, 1337 (2009); Hedley S. Grantham et al., Reducing Bycatch in the South African
Pelagic Longline Fishery: The Utility of Different Approaches to Fisheries Closures, 5 ENDANGERED
SPECIES RES. 291, 296 (2008) [hereinafter Grantham et al., Closures”].
4. See INT’L UNION FOR CONSERVATION OF NATURE, ECOLOGICALLY OR BIOLOGICALLY
SIGNIFICANT AREAS IN THE PELAGIC REALM: EXAMPLES & GUIDELINES 21 (Daniel C. Dunn et
al eds., 2011); Edward T. Game et al., Pelagic Protected Areas: The Missing Dimension in Ocean
Conservation, 24 TRENDS ECOLOGY & EVOLUTION 360, 364 (2009).
5. See Alistair J. Hobday & K. Hartmann, Near Real-Time Spatial Management Based on
Habitat Predictions for a Longline Bycatch Species, 13 FISHERIES MGMT. & ECOLOGY 365, 365
(2006) (discussing fishing quotas used in a dynamic management system).
6. Objectives differ. Conservation objectives seek to protect species of concern,
shipping objectives relate to fast and safe movement of goods, and fishing objectives relate
to the efficient capture of target species.
2014] DYNAMIC OCEAN MANAGEMENT 129
areas.7
Legal capacity for DOM, however, is variable, and even
voluntary DOM approaches face legal challenges due to data
confidentiality and intellectual property protections. By definition,
DOM is responsive to real-time changes in human factors (for
example, fishing vessel movements) and environmental factors
(for example, ocean temperatures). Compulsory applications of
DOM particularly necessitate highly adaptable and rapid decision-
making by regulators. Yet legal regimes typically favor processes
resulting in decisions that grant resource users certainty.
Traditionally, these processes incorporate user consultation and
take place over time periods of months to years, creating a
significant impediment for DOM applications.
DOM can provide comparable protection to such species by
identifying smaller protected areas that move in response to
predictable animal or oceanographic movements. As a result,
restrictions on human activity are limited to smaller geographic
areas and activities may continue in other areas without similar
restrictions.
8
Several well-known examples of DOM seek to reduce the
overlap of fishing operations with the distribution of bycatch
species. TurtleWatch, a voluntary program in the North Central
Pacific, aims to reduce the bycatch of sea turtles in the Hawaii
shallow-set longline fishery.
Despite this, the
few existing compulsory DOM applications have overcome these
impediments successfully. We highlight how these impediments
have been overcome in subsequent sections, and also discuss
remaining challenges for voluntary and compulsory approaches.
9 This scheme was developed to address
the significant increase in the number of loggerhead turtles in the
bycatch of the Hawaii-based longline fishery during the 1990s
which led to temporary time-area closures in the early 2000s and
eventually a ban of all shallow-set fishing in 2002.10
7. See Grantham et al., Closures, supra note 3, at 29 (discussing potential restrictions,
including gear restrictions, temporal restrictions, bycatch reduction devices, and closures).
The shallow-set
fishery was reopened in late 2004 with significant restrictions,
including a total take limit of seventeen interactions with
8. See, e.g., Alistair .J. Hobday et al., Electronic Tagging Data Supporting Flexible Spatial
Management in an Australian Longline Fishery, in TAGGING AND TRACKING OF MARINE
ANIMALS WITH ELECTRONIC DEVICES 393 (J. Nielsen, J.R. Sibert, A.J. Hobday & M.E.
Lutcavage, H. Arriabalaga & N. Fragoa, eds., 2009) [hereinafter Hobday et al., Tagging]
(discussing previous management decisions identifying southern bluefin tuna habitat
based on many rounds of consultation).
9. Howell et al., supra note 2, at 267.
10.Id. at 268.
130 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
loggerhead turtles, after which the fishery would be closed for the
rest of the year.11 In March 2006, the seventeen-loggerhead-turtle-
take limit was reached, forcing the closure of the shallow set
portion of the fishery for the rest of the year.12 The TurtleWatch
program was subsequently developed to determine if areas of high
turtle abundance could be identified and avoided by the fishery.13
Operational longline fishery characteristics, bycatch information,
and loggerhead turtle satellite tracks were used in conjunction
with remotely sensed sea surface temperature data to identify the
area where the majority of loggerhead turtle bycatch in the
longline fishery occurred.14 The TurtleWatch tool now provides a
real-time map of the preferred thermal habitat of loggerhead sea
turtles in the Pacific Ocean north of the Hawaiian Islands.15 It
allows fishers to voluntarily avoid regions where bycatch may be
high, so as to avoid reaching the bycatch limit and hence shutting
down the fishery, without imposing a fixed closed area.16
In eastern Australia, a longline fishery has used DOM since
2003 to reduce bycatch of southern bluefin tuna (SBT).
17 A quota-
limited species, SBT makes annual winter migrations to the
Tasman Sea off southeastern Australia.18 During its migration, SBT
interacts with a year-round tropical tuna longline fishery (Eastern
Tuna and Billfish Fishery).19 Fishery managers use spatial
restrictions to minimize SBT bycatch by commercial longline
fishers who have limited or no SBT quota.20 They restrict access to
areas in which SBT are believed to be present to fishers holding
SBT quotas using a temperature-based habitat model to determine
where SBT may be located.21 To determine adult SBT temperature
preferences, the model uses data from pop-up satellite archival
tags.22
11. Id. at 269.
The model provides near real-time SBT location
information by matching these temperature preferences to
satellite-based sea surface temperature data and to vertical
12.Id. at 268
13. Id.
14.Id. at 269-70.
15. Id. at 277.
16. Id. at 276.
17.Hobday et al., Seasonal Forecasting, supra note 2, at 898; see also Hobday &
Hartmann, supra note 5, at 366.
18.Hobday & Hartmann, supra note 5, at 365.
19. Id.
20. Id.
21. Id.
22.Id. at 367.
2014] DYNAMIC OCEAN MANAGEMENT 131
temperature data from an oceanographic model, which is updated
every two weeks during the overlap period.23
Past articles have outlined the scientific and management
process for these and other DOM examples.
Because the DOM
zones vary in response to the distribution of fish habitat, areas
smaller than the annual area under management are closed at any
one time, reducing conflict with fishers.
24 This article
identifies seven elements commonly encountered when seeking to
implement DOM: (1) tools and data collection, (2) data upload
and database management, (3) data processing, (4) data delivery,
(5) decision-making, (6) implementation, and (7) enforcement.25
II. SEVEN ELEMENTS SUPPORTING DYNAMIC OCEAN MANAGEMENT
This analysis is based on a review of current examples and
considers the scientific, technological, management, and policy
issues affecting each of these seven elements. The remainder of
this article is organized into three Parts. In Part Two we briefly
examine and describe each of the seven elements supporting
DOM and consider current scientific/technological, legal, and
institutional issues. We also highlight the current challenges to
implementing each element and provide examples from the
United States and Australia to illustrate effective uses of science
and technology. In Part Three we identify policy and management
needs to show how capacity to implement DOM might be
increased. Finally, in Part Four we conclude that, though
challenging, a dynamic approach to management is critical given
the ever-changing nature of the marine system, its species, and its
human users. We further argue that DOM increases both ecologic
and economic sustainability of marine systems. Its success,
however, requires strong institutional and stakeholder support.
In this Part, we describe seven critical elements needed to fully
implement DOM.26
23.Hobday et al., Seasonal Forecasting, supra note 2, at 899.
While the first four elements may seem similar
because they all relate to data, separating them is important since a
focus on only one element generally has failed to support DOM.
Voluntary DOM approaches may only need to consider these first
24.See, e.g., Grantham et al., Dynamic Planning, supra note 1, at 2; INT’L UNION FOR
CONSERVATION OF NATURE, supra note 4, at 7; Hobday et al., Tagging, supra note 8, at 381;
K. David Hyrenbach, Karin A. Forney & Paul K. Dayton, Marine Protected Areas and Ocean
Basin Management, 10 AQUATIC CONSERVATION: MARINE & FRESHWATER ECOSYSTEMS 437,
445-46 (2000).
25. See infra Figure 1.
26. Id.
132 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
four elements. Thus, the management, legal, and policy
considerations relevant to these are discussed together.
Compulsory DOM, enforced through legislation or policy, usually
encompasses all seven elements. For the final three elements, the
management, legal, and policy considerations are described
immediately after each element.
2014] DYNAMIC OCEAN MANAGEMENT 133
Figure 1: Scientific and Technological Elements that Contribute to Effective DOM
* Scientific and technological elements (gray boxes); examples of the legal, policy, and
management issues that affect the depolyment of the technological solution (white boxes).
Voluntary DOM may only follow the first four elements, while compulsory DOM typically
requires all seven elements. Overarching issues of capacity and system sustainability also
may constrain DOM.
134 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
A. Element 1: Data Collection: Scientific and Technological Issues
Data collection is the first step toward developing information
to support DOM.27 To develop the information needed to support
DOM decision-making, it is necessary to combine and synthesize
oceanographic, biological, and resource use data.28 To inform
predictive models, data collection for DOM thus necessarily spans
a wide range of data sources, technologies, and collection
activities.29 DOM can require continuous data input to provide
information on the state of a marine ecosystem at a particular time
and information regarding recurring patterns across space and
time.30
Most DOM examples require the input and processing of
remotely or directly sensed oceanographic observations collected
at regional and global scales in real or near real time.
31 Such data
allow scientists to assess the temporal dynamics of oceanographic
variables, including sea surface temperature (SST), ocean color
(chlorophyll-a), currents, and other variables.32 These data are
generally processed into either instantaneous values for a specific
observation period or aggregated into spatial climatologies that
represent expected conditions for average seasonal or monthly
time periods.33 Direct observations for a specific date or time
period are useful for monitoring specific conditions and
relationships, while remotely sensed climatological datasets
provide baselines for the expected periodicity of ocean processes,
for example, their seasonal cycles.34
In situ biological or resource use data are necessarily more
spatially restricted and expensive to collect than remotely sensed
oceanographic data.
35
27. See John H. Roe et al., Predicting Bycatch Hotspots for Endangered Leatherback Turtles
on Longlines in the Pacific Ocean, 281 PROC. ROYAL ACAD. B 1, 2 (2014).
Biological data can be collected from a
range of sources, including fishers, observers, and electronic tags.
Existing DOM systems most often use biological data from
28. Id. at 6.
29. Id. at 2.
30. Id. at 2.
31. Id. at 6.
32. Id.
33.See Dana K. Wingfield et al., The Making of a Productivity Hotspot in the Coastal
Ocean, 6 PLOS ONE 1, 3 (2011) (discussing oceanographic features that lead to aggregation
of foraging loggerhead turtles).
34. Id. at 4-5 (discussing direct observations and remote sensing-based data
gathering techniques).
35.Of course, satellites are more expensive than any tags. However, users do not pay
the true cost of such remotely sensed data.
2014] DYNAMIC OCEAN MANAGEMENT 135
electronic tags.36 However, DOM also may be supported by data
collected from a wide variety of benthic and water column
sampling methods, including visual observers, net trawls,
Autonomous Marine Vehicles (AMV), surveys, genetic barcodes,
passive acoustic monitoring, and telemetry tracking techniques.37
Because DOM is often linked to movements of highly mobile
species, we will discuss several particularly critical types of
biological data collection methods. Satellite telemetry, active
acoustic sensors, and passive acoustic monitoring track the
movements and behavior of individual animals in relation to
changing oceanographic conditions.
DOM requires repeated measurements of biological data across
multiple space and time scales to capture the expected ranges and
periodicity of responses to oceanographic variability.
38 This type of direct spatio-
temporal monitoring measures animal movements, physiological
conditions, and three-dimensional dive behavior, giving valuable
information on animal responses to natural and anthropogenic
changes in their environment.39 Some tracking devices, especially
those that can transmit data in real time, are more appropriate for
use with dynamic management, and those that also provide
oceanographic data may be particularly useful.40 However, not all
devices are suitable for all species, particularly for smaller species
or for species that broach the surface infrequently. Argos satellite
tags provide at-sea locations and have the advantage that the data
can be recovered remotely.41 Electronic tags deployed on animals
also provide oceanographic data in areas where conventional
methods are limited or absent.42
36.See Hobday et al., Tagging, supra note 8, at 381; Howell et al., supra note 2, at 268.
37.See ARCTIC COUNCIL, ARCTIC MARINE BIODIVERSITY MONITORING PLAN: CAFF
MONITORING SERIES REPORT NO. 3 at 36, 53-56, 62 (2011). AMVs may provide particularly
high-quality data in both surface and subsurface marine environments especially relative to
often-used technologies like radio signals and sonar, both of which are limited by short-
range frequencies. The data can be collected and transmitted in real time for analysis and
further sampling at either the same or alternative locations.
38.Daniel P. Costa et al., New Insights into Pelagic Migrations: Implications for Ecology
and Conservation, 43 ANN. REV. ECOLOGY, EVOLUTION & SYSTEMATICS 73, 77-80 (2012)
[hereinafter Costa et al., New Insights].
39. Id. at 84.
40.See infra Table 1; see also Costa et al., New Insights, supra note 38, at 79; Elliot
Hazen et al., Ontogeny in Marine Tagging and Tracking Science: Technologies and Data Gaps,
457 MARINE ECOLOGY PROGRESS SERIES 221, 231-33 (2012).
41. Costa et al., New Insights, supra note 38, at 79-80.
42.L. Boehme et al., Animal-Borne CTD-Satellite Relay Data Loggers for Real-Time
Oceanographic Data Collection, 5 OCEAN SCI. 685, 687-89 (2009); J.-B. Charrassin et al.,
Southern Ocean Frontal Structure and Sea-Ice Formation Rates Revealed by Elephant Seals, 105
PROC. NAT’L ACAD. SCI. 11,634, 11,636-37 (2008); Daniel P. Costa et al., Approaches to
136 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
Table 1: Comparison of Devices Currently Available and Commonly Used
for Tracking Marine Species.
Tracking method Accuracy Data recovery Use in DOM
Global Positioning
System (GPS) loggers
High (m) Device recovery
necessary
Historical description of ocean use
Platform Terminal
Transmitters (PTT)
Medium (few km) Real-time data
downloaded via
satellite
Real-
time integration of data streams
Argos/GPS-PTT High (m) Real-time data
downloaded via
satellite
Real-
time integration of data streams
Very High Frequency
(VHF) radio tags
Medium (few km)
Real-time
collection
of data at site
Historical description of ocean use
Geolocators (GLS) and
archival tags – loggers
Low (>100 km) Device recovery
necessary
Historical description of ocean use
Compass – loggers Medium (few km) Device recovery
necessary
Historical description of ocean use
* The accuracy and method of data recovery are particularly pertinent to dynamic ocean
management. Adapted from Lascelles et al. 2012.43
Data on species presence or absence provide information on
the species’ expected distribution range, biogeographic patterns,
and biological diversity. However, to address many of the questions
underpinning DOM, repeated observations of species abundance
and density are essential.
44 These questions include how
populations change across naturally occurring variations in ocean
conditions and how human use patterns change.45
Equally critical to biological data collection is resource use
data, including the distribution of users, type of activity, and
intensity of use in space and time. Significant advances in the
development of vessel tracking systems such as automatic
A number of
different data types can be used to inform these questions
including data collected by aerial or at-sea survey programs,
fishery-independent sampling surveys, and benthic habitat dive
surveys.
Studying Climatic Change and Its Role on the Habitat Selection of Antarctic Pinnipeds, 50
INTEGRATIVE & COMP. BIOLOGY 1018, 1019 (2010) [hereinafter Costa et al., Pinnipeds].
43.Ben G. Lascelles et al., From Hotspots to Site Protection: Identifying Marine Protected
Areas for Seabirds Around the Globe, 156 BIOLOGICAL CONSERVATION 5, 7 (2012).
44.Rob Williams et al., Prioritizing Global Marine Mammal Habitats Using Density Maps
in Place of Range Maps, 56 ECOGRAPHY 1, 58 (2013).
45.Sarah M. Maxwell et al., Cumulative Human Impacts on Marine Predators, 4 NATURE
COMM. 1, 4-5 (2013).
2014] DYNAMIC OCEAN MANAGEMENT 137
identification systems (AIS) and vessel monitoring systems (VMS)
now allow for near-real-time tracking of shipping and fishing
vessels in the oceans.46 These data provide critical information on
the spatio-temporal distribution of users but may not provide
enough details on intensity of use or specific activities, for
example, the quantity of commercial species harvested, and type of
activity occurring. Data on activity type and use intensity are
frequently collected via on-board observers or through voluntary
reporting systems, for example, through fishery logbook reporting,
one-to-one interviews, and email.47 However, some of these data
collection systems may result in time lags that exceed DOM needs.
Technological advances, such as smartphone applications that
allow for near-real-time reporting may address this problem. For
example, eCatch is a smart device application that allows fishers to
collect and input catch data and have it sent to a centralized
database via cellular or satellite signals.48
B. Element 2: Data Upload and Management: Scientific and
Technological Issues.
Following collection of the oceanographic, biological, and
resource use data to be used in the DOM approach, data must be
delivered, then rapidly compiled and integrated into a central
location for processing (Element 3). In the case of oceanographic
products such as gridded satellite-derived ocean temperatures,
data can be obtained from a number of primary sources and
housed locally or accessed online when needed. For example, at
Australia’s Commonwealth Scientific and Industrial Research
Organisation (CSIRO), a series of computer programs
automatically updates and maintains a file system of
oceanographic data products used for DOM, including gridded
datasets of temperature and chlorophyll, making the data
accessible in real time.49
46. See Erik Jaap Molenaar & Martin Tsamenyi, Satellite-based Vessel Monitoring Systems
for Fisheries Management: International Legal Aspects, 15 INT’L. J. MARINE & COASTAL L. 65, 65,
80 (2000).
47. See, e.g., Derek J. Hamer, Tim M. Ward & Richard McGarvey, Measurement,
Management and Mitigation of Operational Interactions Between the South Australian Sardine
Fishery and Short-beaked Common Dolphins (Delphinus delphis), 141 BIOLOGICAL
CONSERVATION 2865, 2873 (2008) (describing data collection using fishery logbooks).
48.See eCatch, THE NATURE CONSERVANCY,
https://www.ecatch.org/Media/about.htm (last visited Apr. 3, 2014).
49.See Jason R. Hartog et al., Developing Integrated Database Systems for the Management
of Electronic Tagging Data, in TAGGING AND TRACKING OF MARINE ANIMALS WITH
138 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
A range of data upload technologies exist for data collected at
sea, including biological data, such as tag-based location data, and
resource use data, such as fishing vessel location data. These
include satellite-based (ARGOS), telephone-based (Iridium),
telemetered and transmitted (acoustic), radio transmission (catch
records), and traditional email and web-based technologies (vessel
or observer reports).50 Additionally, some data cannot be
transmitted but rather must be stored and directly downloaded
from the device either at a single time (for example, archival-based
tags), or on a regular basis when instruments are serviced.51
While some data are ready to use once transmitted, other types
require additional processing. For example, location information
can be obtained from archival data logging tags that collect light-
level data from which geographic positions can be reconstructed
based on day length and on-board clock offsets.
52
GPS tags provide the highest quality tracks in terms of both
spatial and temporal resolution for marine species. The most
recent GPS tags acquire satellite signals and either store them for
later calculation after tag recovery or use them to calculate average
position for a specified time period that can then be transmitted
via Argos.
53 Even with these techniques, however, Argos bandwidth
still limits the amount of information that can be transmitted, with
only a small fraction of collected GPS locations typically being
transmitted. All of the data can be recovered from GPS tags if the
tag is retrieved or it is linked to cell phone networks, but this
requires that the animals, such as seals, haul out within the range
of wireless telecommunication networks.54
ELECTRONIC DEVICES 374 (J. Nielsen, J.R. Sibert, A.J. Hobday & M.E. Lutcavage, H.
Arriabalaga & N. Fragoa, eds., 2009).
Acoustic pingers have
seen the broadest application for non-surfacing species and have
been deployed on both invertebrates and vertebrates. These tags
are generally implanted into the animal and produce a unique
50. See, e.g., Marco Marcelli et al., New Technological Developments for Oceanographic
Observations, in OCEANOGRAPHY 44-45, 54, 60 (Marco Marcelli, ed. 2012) (referencing
ARGOS, Iridium, acoustic data gathering methods, data transmission, and observations).
51. Michael K. Musyl et al., Ability of Archival Tags to Provide Estimates of Geographic
Position Based on Light Intensity, in ELECTRONIC TAGGING AND TRACKING IN MARINE
FISHERIES 346 (John R. Sibert & Jennifer R. Nielsen, eds. 2001).
52.David W. Welch & J. Paige Eveson, An Assessment of Light-Based Geoposition
Estimates from Archival Tags, 56 CAN. J. FISHERIES & AQUATIC SCI. 1317, 1326 (1999).
53.Stanley M. Tomkiewicz et al., Global Positioning System and Associated Technologies in
Animal Behaviour and Ecological Research, 365 PHIL. TRANSACTIONS ROYAL SOC’Y B:
BIOLOGICAL SCI. 2163, 2166 (2010).
54.Bernie McConnell et al., Phoning Home–A New GSM Mobile Phone Telemetry System to
Collect Mark-Recapture Data, 20 MARINE MAMMAL SCI. 274, 279 (2004).
2014] DYNAMIC OCEAN MANAGEMENT 139
coded acoustic ping that can be tracked with a fixed or mobile
acoustic receiver array.55 Data from the devices are automatically
downloaded from mobile or moored listening stations, or can be
collected when moored stations are recovered.56
Security from database failure is also an issue for DOM. Systems
failure will lead to a breakdown in delivery of processed
information to the users. Backup and storage of databases and raw
data is recommended, typically on two systems or with two user
accounts. With the CSIRO data management system, for example,
all transmission data available for an Argos program are stored in a
different user account that is routinely backed up.
57 In this way, all
the raw, unprocessed data from Argos are maintained should
either the database or the database backup fail. In the unlikely
event the database or decoding has been corrupted, the whole
system can be restored quickly using only the raw Argos
downloads. Similar data security systems are in place for the Ocean
Biogeographic Information System Spatial Ecological Analysis of
Megavertebrate Populations (OBIS-SEAMAP), a global
biogeographic data commons for tracking and survey data of large
marine vertebrates.58
C. Element 3: Data Processing: Scientific and Technological Issues.
DOM products, such as habitat maps, are generated from a
combination of data types. Real-time data are crucial for
identifying oceanographic variability or any sudden or short-term
population shifts that may require a change in protected area
boundaries on a short time scale. Such a situation may arise, for
example, when a species of concern interacts with a human
activity, for example, a right whale being present in a shipping
lane.59
55.Laurent Dagorn et al., Satellite-Linked Acoustic Receivers to Observe Behavior of Fish in
Remote Areas, 20 AQUATIC LIVING RES. 307, 308-09 (2007); M.R. Heupel et al., Automated
Acoustic Tracking of Aquatic Animals: Scales, Design and Deployment of Listening Station Arrays,
57 MARINE & FRESHWATER RES. 1, 8-10 (2006).
Thus, retrospective approaches to data processing likely are
56. See supra Table 1.
57. Hartog et al, supra note 49, at 371-74 (describing potential to store ARGOS data
in central database and with individual clients).
58.P.N. Halpin et al., OBIS-SEAMAP: Developing a Biogeographic Research Data Commons
for the Ecological Studies of Marine Mammals, Seabirds, and Sea Turtles, 316 MARINE ECOLOGY
PROGRESS SERIES 239, 242-44 (2006).
59.See, e.g., Sofie M. Van Parijs et al., Management and Research Applications of Real-
Time and Archival Passive Acoustic Sensors Over Varying Temporal and Spatial Scales, 395
MARINE ECOLOGY PROGRESS SERIES 21, 24 (2009) (discussing the problem of ships striking
whales).
140 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
inadequate for supporting real-world DOM.
Obtaining real-time biological data may require, for instance,
automated processing of animal tracking data in comparable or
standardized formats. To automatically download, decode, and
archive tag data from Service Argos on a daily basis, control scripts
may be required.60 For example, the CSIRO Electronic Tag
Database collates data from satellite tags and pop-up satellite
archival tags via a fully automated system driven by a series of
functions and scripts executed in both Perl and Bash in a Linux
environment.61
Complex information needs to be combined in a software
product with an analysis framework that is adaptable and able to
incorporate incoming data. For example, satellite tag data often
need to be processed through state space modelling or other
filters.
62 By contrast, “sightings data” (for example, information
about whale positions) needs to be converted to spatial densities.63
In most cases, oceanographic information is then combined with
biological information via customized software to generate habitat
maps that support dynamic management decision-making.64 In
addition to custom software packages, web-based tools such as the
Satellite Tracking and Analysis Tool (STAT) can provide track
standardization and can sample environmental data.65 Tools in
programming languages such as MATLAB and R include
Xtractomatic,66 and the Marine Geospatial Analysis Tools (MGET)
in ArcGIS67
60.Id.
can be used to combine point data with environmental
features. This data combination is a necessary step in
61. Hartog et al, supra note 49, at 371.
62.See, e.g., Costa et al., New Insights supra note 38, at 81; Arliss J. Winship et al., State-
space Framework for Estimating Measurement Error from Double-Tagging Telemetry Experiments, 3
METHODS ECOLOGY & EVOLUTION, 291, 291 (2011); Greg A. Breed et al., Sex-specific,
Seasonal Foraging Tactics of Adult Grey Seals (Halichoerus Grypus) Revealed by State-space
Analysis, 90 ECOLOGY 3209, 3209 (2009).
63.See Distance – An R Package for Distance Sampling Analysis, GITHUB,
https://github.com/dill/Distance/wiki (last visited Mar. 30, 2014) (providing a tool for
converting spatial densities).
64.See, e.g., Hobday & Hartmann, supra note 5, at 366.
65.See M. S. Coyne & B. J. Godley, Satellite Tracking and Analysis Tool (STAT): An
Integrated System for Archiving, Analyzing and Mapping Animal Tracking Data, 301 MARINE
ECOLOGY PROGRESS SERIES 1, 1 (2005) (describing use of STAT).
66.See J. S. Stewart et al., Marine Predator Migration During Range Expansion: Humboldt
Squid Dosidicus Gigas in the Northern California Current System, 471 MARINE ECOLOGY
PROGRESS SERIES 135, 140 (2012) (discussing use of Xtractomatic)
67.See Jason J. Roberts et al., Marine Geospatial Ecology Tools: An Integrated Framework
for Ecological Geoprocessing with ArcGIS, Python, R, MATLAB, and C++, 25 ENVTL. MODELLING.
& SOFTWARE 1197, 1197 (2010) (discussing use of MGET in ArcGIS).
2014] DYNAMIC OCEAN MANAGEMENT 141
understanding the species-environment relationships that underlie
DOM frameworks. Ultimately, automated processing of multiple
data types will be necessary to provide a DOM product that can be
used by managers and resource users in near real time.68
D. Element 4: Data Delivery: Scientific and Technological Issues.
Delivering data back to a user in real or near real time is
critical for DOM to operate over short time scales. Data may be
provided to management agencies or resource users, or it may be
processed for a specific management application and then made
publicly available.69
Email and websites are two of the most common delivery
systems for processed data, particularly remote-sensing systems. For
example, the Argos satellite system uses email as a base delivery
system for data such as animal and vessel location.
A number of data delivery systems already
exist, ranging in level of sophistication and specificity.
70 Users can log
on to websites to access data in more sophisticated forms. On the
northeastern coast of the United States, the Yellowtail Bycatch
Avoidance Program aims to minimize bycatch of yellowtail
flounder in the scallop fishery.71 It uses email to collect data from
fishers regarding the distribution of yellowtail flounder bycatch in
the scallop fishery and to distribute the next day’s
recommendations on which areas to avoid.72 Similarly, in Australia,
researchers deliver forecasts of SBT habitat by email to fisheries
managers so that zones can be created for fishers based on the
amount of SBT quota they hold.73 Managers then alert fishers
through messages via VMS sent to all vessels with email. Web-based
updates are also provided. Finally, TurtleWatch uses a website to
provide weekly maps indicating areas that fishers should consider
avoiding to reduce loggerhead turtle bycatch.74
More complex data delivery systems for specific data types or
programs allow users to interact with the information provided.
68.See Hobday et al., Seasonal Forecasting, supra note 2, at 908-09.
69. See Howell et al., supra note 2, at 272-73 (describing changes in turtle bycatch
after data was processed and made publicly available through the TurtleWatch system).
70. See Costa et al., New Insights, supra note 38, at 78-80 (describing how data is
transmitted through the Argos system).
71. See Bycatch Avoidance Programs, UMASS DARTMOUTH SCHOOL FOR MARINE SCIENCE
& TECHNOLOGY, http://www.umassd.edu/smast/bycatch/ (last visited Mar. 31, 2014).
72.Id.
73.Hobday et al., Seasonal Forecasting, supra note 2, at 908.
74.See Howell et al., supra note 2, at 270 (describing weekly compilation of data to
create maps available through the Pathfinder V4 SST product).
142 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
For example, wildlifetracking.org, a service of seaturtle.org, serves
data from nearly 3,000 active satellite-tracked animals.75 When
used with STAT and with bathymetry or remote sensing data, users
can filter, analyze, and map satellite tracks.76 Other similar systems
include Movebank,77 OzTrack,78 and seabirdtracking.org.79 Smart
phones also are being used to deliver data using apps like eCatch,
a program developed by The Nature Conservancy to input, track,
and serve data for fishers on the west coast of the United States.80
While many apps, such as the Global Shark Tracker app, are
currently used as outreach tools, they also can be used to serve
information directly to users.81 For example, fishery observers
could input data using an app. This same app could then process
and serve the information back to fishers with relevant regulations,
such as closed areas or quota restrictions.82
1. Legal and management challenges associated with data collection
and management systems
VMS also can be used
to confirm that fishers received the most up-to-date spatial
regulations.
The data-related components of DOM described in elements
one through four present both management and legal challenges.
These include issues related to confidentiality, data sharing,
ownership and intellectual property rights, use of autonomous
marine vehicles, and animal ethics, as discussed below.
2. Privacy and confidentiality
Privacy and confidentiality impinge on the use of data for
DOM and present distinct legal challenges in different countries.
Data uploading must comply with any privacy agreements or codes.
Confidentiality policies and laws protect the commercial and
75. See WILDLIFE TRACKING, http://www.wildlifetracking.org/ (last visited Mar. 31,
2014).
76.Coyne & Godley, supra note 65, at 1-2.
77.See B. Kranstauber et al., The Movebank Data Model for Animal Tracking, 26 ENVTL.
MODELLING & SOFTWARE 834, 834 (2011).
78.P. Newman et al., Oztrack: Data Management and Analytics Tools for Australian
Animal Tracking, 5 ERESEARCH AUSTL. CONF. 1, 1 (2011).
79.Seabird Tracking Database, BIRDLIFE INT’L, http://seabirdtracking.org (last visited
Mar. 31, 2014).
80.See THE NATURE CONSERVANCY, supra note 48.
81.See OCearch, Global Shark Tracker, ITUNES (last updated Jan. 20, 2014),
https://itunes.apple.com/us/app/global-shark-tracker/id570772231?mt=8.
82. See, e.g., Powered by Conserve.iO, CONSERVE.IO, http://conserve.io/showcase/ (last
visited Mar. 31, 2014) (listing available “spotter” and “alert” apps).
2014] DYNAMIC OCEAN MANAGEMENT 143
privacy rights of resource permit holders.83 For example, to protect
information regarding the locations of fishers’ preferred fishing
grounds, fishing data in the United States must be aggregated so
that vessel movement and catch information about each fishing
gridcell may only be released if more than three vessels have used
the gridcell.84 Australia requires that at least five vessels use an area
before reporting of data at a one-degree scale is permitted.85
The availability of data regarding activities in the Exclusive
Economic Zone varies from jurisdiction to jurisdiction. For
example, in the United States, the National Marine Fisheries
Service (NMFS) Catch Share Program monitors how the economic
benefits and distribution of trawl fishing change over time, and
produces a publicly available annual report that highlights
aggregate economic data for trawl fishery participants.
86 The
report is generated based on submissions from these participants,
including data regarding vessel and processing plant
characteristics, capitalized investments, annual expenses, annual
earnings, crew and labor payments, and quota and permit
expenses.87 Individual submissions are confidential under the
Magnuson-Stevens Act (MSA) and National Oceanic &
Atmospheric Administration (NOAA) Administrative Order 216-
100.88
83.See, e.g., Miss. Code R. § 22—1—24:03 (recognizing the confidentiality of all data
submitted to government officials through marine fisheries statistical reporting program).
Individual fishers’ information is added to a common fishery
database, and fishers retain privacy regarding individual fishing
techniques and preferred fishing grounds. Regulatory agencies,
scientists, and fisheries managers can then use the data while
84. See 50 C.F.R. § 600.1014(h) (authorizing National Marine Fisheries’ Service to
aggregate data to preserve confidentiality).
85. AUSTL. FISHERIES MGMT. AUTH., FISHERIES MANAGEMENT PAPER 12:
INFORMATION DISCLOSURE 4 (June 2010), available at http://www.afma.gov.au/wp-
content/uploads/2010/07/fmp12.pdf?9370a8.
86. See Catch Shares, NAT’L OCEANI C & ATMOSPHERIC ADMIN. FISHERIES,
http://www.nmfs.noaa.gov/sfa/management/catch_shares/index.html (last visited Mar.
31, 2014).
87.50 C.F.R. § 660.114(a); (requiring submission of data); see also Economic Data
Collection (EDC) Overview, NAT’L OCEANIC & ATMOSPHERIC ADMIN. FISHERIES,
http://www.nwfsc.noaa.gov/research/divisions/fram/economic/overview.cfm (describing
EDC program).
88.16 U.S.C. § 1181a(b) (describing confidentiality requirements for data submitted
under the MSA); NAT’L OCEANIC & ATMOSPHERIC ADMIN., ADMINISTRATIVE ORDER 216-100
at App. M (1994), available at
http://www.corporateservices.noaa.gov/ames/administrative_orders/chapter_216/216-
100.html (providing for protection of confidential fisheries statistics).
144 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
protecting the identity of the fisher.89 NMFS in 2012 sought to
amend regulations under the MSA to further limit existing
availability of fisheries information,90 a proposal that met with
strong opposition from environmental and conservation NGOs.91
These restrictions on data accessibility can hinder DOM
applications by making it difficult to accurately access economic
trade-offs associated with proposed DOM activities.92
State governments in the United States also have made
fisheries data confidential. For example, Mississippi regulators
collect information on seafood landed and processed in the state
but are not allowed to divulge information provided unless it is in
aggregate form or specific authorization has been given.
Similar
difficulties also apply to non-dynamic management applications.
93
Mississippi’s confidentiality protections are legitimized under the
auspices of protection, conservation, and effective regulation of all
seafood landed or processed within the state’s territorial
jurisdiction.94 However, such regulations severely limit the
circumstances under which state officials can reveal proprietary
information to state or federal agencies and requires
confidentiality officers to oppose other agency and congressional
subpoenas.95
While businesses may have valid confidentiality concerns in
providing catch share data, making this information confidential
severely limits the utility of the data collected. Limiting data access
could work against the interests of both fishers and
conservationists, depending on the political climate. Without
detailed information, policymakers may adopt an overly
precautionary approach that would exclude fishers from contested
grounds. Alternatively, negative effects may be overlooked with
89.Cf. Method of Data Collection for Fisheries Management. U.S. Patent
Application WO2000052611 A2 (filed Nov. 23, 1999), available at
http://www.google.com/patents/WO2000052611A2?cl=en (describing method of
submitting commercial fishing data that protects identity of individual fishers).
90.Confidentiality of Information; Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act, 77 Fed. Reg. 30,486, 30,487 (May 23, 2012).
91.See, e.g., Letter from Ivy Fredrickson, Staff Attorney, Ocean Conservancy, et al., to
Karl Moline and Alan Risenhoover, Acting Deputy Administrator for Regulatory Programs,
National Marine Fisheries Service (Oct. 19, 2012), available at
http://www.pewenvironment.org/uploadedFiles/PEG/Publications/Other_Resource/Dat
a%20Confidentiality%20Sign-on%20Letter%20pdf%20pdf.pdf (letter on behalf of more
than fifty NGOs protesting proposed rule).
92. See infra Figure 2.
93. Miss. Code R. § 22—1—24:03
94.Id. § 22—1—24:02.
95.Id. § 22—1—24:03.
2014] DYNAMIC OCEAN MANAGEMENT 145
adverse outcomes for resource and biodiversity conservation.96
Such confidentiality measures also run counter to trends in the
United States, European Union, and elsewhere toward greater
transparency and access to environmental information97 and a
commitment to implementing an ecosystem-based approach to
fisheries management.98 While the desire to make data anonymous
may be legitimate, preventing scientific access to anonymous,
individualized data is not. To date, scientists and other data users
report general trends, not individual information.99 Anonymous
but individualized data would allow those interested in the data to
conduct analyses based on individual users while protecting the
identity of individual fishers. Data users could be required to sign
data use agreements to this effect, as in Australia when raw fishing
data is distributed beyond government and industry users.100
3. Ownership and intellectual property rights
For
these reasons, confidentiality protections afforded in current laws,
licences, permits, or quota conditions must be re-evaluated in light
of DOM’s emerging needs.
Data ownership and intellectual property (IP) rights present
significant data access, comprehension, and use challenges,
particularly regarding difficult-to-collect tracking data.
In the United States, data collection and uploading may be
subject to IP restrictions. If individuals (for example, recreational
fishers) own the data, they may be able to restrict both access to
and use of it. However, the MSA deems all resources in a fishery to
be common property and prevents the individual ownership of
such resources.101
96.H. Hinz et al., Confidentiality over Fishing Effort Data Threatens Science and
Management Progress, 14 FISH & FISHERIES 110, 116 (2012).
For some researchers collecting biological data,
data ownership-particularly difficult-to-collect animal tracking data-
presents concerns. Widespread distribution of such data, via
websites and apps, needs to be done in a way that protects the
researcher’s IP interest in the data.
97.See, e.g., Convention on Access to Information, Public Participation in Decision
Making and Access to Justice in Environmental Matters, opened for signature June 25, 1998,
2161 U.N.T.S. 447 (entered into force Oct. 20, 2001).
98.Hinz et al., supra note 96, at 110.
99.Id. at 113.
100. AUSTL. FISHERIES MGMT. AUTH., supra note 85, at 4.
101.Christopher Costello & Corbett A. Grainger, The Value of Secure Property Rights:
Evidence From Global Fisheries 5 (Nat’l Bureau of Econ. Res., Working Paper No. 17019, May
2011), available at http://www.nber.org/papers/w17019.pdf?new_window=1.
146 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
While some funding agencies require that scientific data be
publicly available, there are still considerable issues ensuring
scientists comply with such requirements. Many data websites, such
as wildlifetracking.org, seabirdtracking.org, and OBIS-SEAMAP,
require visitors to agree to terms of use before they may access the
data.102
Additionally, modelled DOM products that integrate across
datasets may address the needs of resource users, scientists, and
managers alike and may aid in facilitating agreements to use data
products in real time. Multi-dataset or modelled products protect
an individual’s data by smoothing and predicting individual
datasets based on covariates, such that each vessel’s location or
each track is equally weighted in the final products. While feasible
to use in DOM applications, multi-dataset or modelled products
can take time to produce. Once created, however, real time data
can be integrated into existing models.
These terms of use typically require contacting the data
custodian for permission to use the data. Permission must be
sought each time new data are added to the repository. This
creates difficulties for real time use of data for DOM, but standing
agreements for real-time portals could overcome these difficulties
with relative ease.
Obtaining data from certain data streams, including satellite
products such as temperature and chlorophyll from SeaWiFS and
MODIS, also may involve legal barriers.103 The data are sometimes
used under research arrangements that prohibit data transfer to
third parties as direct products. However, this barrier may be
overcome by converting data streams to habitat maps or other data
presentation formats. CoastWatch, a web service provided by
NOAA that serves satellite data, has taken this approach to
successfully overcome these barriers.104
In addition to technical and legal challenges, policy and
institutional factors can promote or impede the integration of data
from various sectors, agencies, and levels of government. However,
structures and strategies for agency cooperation and coordination
can maximize the use of DOM by allowing information to be
integrated within and between local, national, and even regional
102. See, e.g., OBIS-SEAMAP Terms of Use, OBIS-SEAMAP,
http://seamap.env.duke.edu/about/termsofuse (last visited Mar. 31, 2014).
103. See Welcome to the Ocean Productivity Home Page, OCEAN PRODUCTIVITY,
http://www.science.oregonstate.edu/ocean.productivity/ (last visited Mar. 31, 2014)
(offering SeaWiFS and MODIS model and sensor products).
104.See Coastwatch Browser, NAT’L OCEANIC & ATMOSPHERIC ADMIN.,
http://coastwatch.pfeg.noaa.gov/coastwatch/CWBrowser.jsp (last visited Mar. 31, 2014).
2014] DYNAMIC OCEAN MANAGEMENT 147
or international government agencies. The introduction of the
United States National Ocean Policy is one example of a policy
change specifically intended to facilitate this type of collaboration.
Executive Order No. 13547, which established the United States
National Ocean Policy, was designed to “[ensure] a
comprehensive and collaborative framework for the stewardship of
the ocean, our coasts, and the Great Lakes that facilitates cohesive
actions across the Federal Government, as well as participation of
State, tribal, and local authorities, regional governance structures,
nongovernmental organizations [NGOs], the public, and the
private sector.”105
Because many sources of data are held outside the government
sector, collaboration and cooperation with NGOs and the private
sector also may be critical. For example, BirdLife International
maintains tracking data from more than 80 researchers.
106 These
data can assist regional fisheries management organizations, to, for
example, reduce seabird bycatch in tuna fisheries. Coordination
may be less of a challenge with open-access data sources, but in
some cases high levels of institutional collaboration may be
required. For example, some NGOs have also been working on
compiling fisheries data across spatial scales, and these data are
also available through domestic and international organizations
such as NOAA and the UN Food and Agriculture Organization.107
These data are not currently compiled on time frames that would
be useful to DOM, but combining global, regional, and national
datasets might provide useful data that could contribute to DOM
in the future. Such resource use data may also be used in models
along with real-time data.108
4. Use of new data collection technologies
New technologies exist that are cost effective for collecting
both human use and biological data. While data collection via
105.Exec. Order No. 13547, 75 Fed. Reg. 43021, 43024 (Jul. 19, 2010).
106. See BIRDLIFE INT’L, supra note 79.
107. See, e.g., Marine Mammal and Turtle Science: Protected resources Databases, NAT’L
OCEANIC & ATMOSPHERI C ADMIN. OFF. SCI & TECH., http://www.st.nmfs.noaa.gov/marine-
mammals-turtles/database/index (last visited Mar. 31, 2014) (providing links to open-
access databases providing real-time tracking of protected marine species, including the
Protected Species Incidental Take database and the Protected Resources-Species
Information System database).
108.See Frequently Asked Questions – Sea Around Us Project Catch Mapping, SEA AROUND
US PROJECT, http://www.seaaroundus.org/faq.htm (last visited Feb. 22, 2014).
148 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
electronic tags and satellites is well established,109 the legal issues
surrounding the use of new technologies that allow in situ
collection of oceanographic data are less clear. For example,
autonomous marine vehicles (AMVs) are potentially an important
future source of data for DOM. However, the use of AMVs in
dynamic marine management has been hampered by perceived
uncertainty over their legal status. In the United States, for
instance, no liability regime exists specifically for AMVs to cover
collisions with other vessels. American scholars have suggested that
AMVs are likely considered “vessels,” which require their
compliance with various provisions of the International
Regulations for Preventing Collisions at Sea (COLREGS).110
Similar discussions are underway at the European Defense
Agency.111 At the time of writing there have been no American
cases defining a vessel to include AMVs, although some
commentators argue that they would fall within the definitions for
purposes of the Law of the Sea.112
5. Animal ethics
If AMVs are determined to be
“vessels,” a host of laws and regulations could apply to their use,
which could diminish some of the economic benefits arising from
their use, particularly with regard to enforcement and data
collection for DOM. If AMVs cannot be used with logistical and
economic ease and efficiency, they may not be able to operate on
the short time scales necessary for DOM.
Animal tracking creates legal concerns regarding animal ethics.
As a result of the long-standing debate and uncertainty
surrounding the ethics of tagging marine mammals in particular,
some jurisdictions rely on national marine mammal and protected
species regulations, codes of practice for using animals in research,
or evaluations by ethics committees to control animal tagging.113
109. See supra Table 1.
In
110. See Michael R. Benjamin & Joseph A. Curcio, Colregs-Based Navigation of
Autonomous Marine Vehicles, 2004 PROC. SYMPOSIUM ON AUTONOMOUS UNDERWATER
VEHICLE TECH. 32, 35 (2004) (suggesting that AMVs will likely be responsible for
observing COLREGS).
111. See Call for Papers: Safety & Regulations for European Unmanned Maritime Systems,
EUR. DEF. AGENCY (Jan. 10, 2014), http://www.eda.europa.eu/info-
hub/news/2014/01/10/call-for-papers-safety-regulations-for-european-unmanned-
maritime-systems.
112.Rob McLaughlin, Unmanned Naval Vehicles at Sea: USVs, UUVs, and the Adequacy of
the Law, 6 J.L. INFO. & SCI. 2, 4 (2012).
113.See Southern Resident Killer Whale Tagging: Frequently Asked Questions, NAT’L
OCEANIC & ATMOSPHERI C ADMIN. FISHERIES,
2014] DYNAMIC OCEAN MANAGEMENT 149
most countries, tagging projects must undergo an animal ethics
review.114 These reviews typically result in approvals being granted
only if the management and population-level benefits of
appropriately conducted animal tracking outweigh the cost to the
animals.115 In the United States, for example, NOAA supports
satellite tagging of whales because the resulting data are more cost
effective, detailed, and accurate than that from aerial surveys.116
Guidelines on the appropriate weight of tags (for example, <5% of
body mass), and use of anesthetic during tag attachment are also
common for a range of other species, with penalties for institutions
or individuals who breach these guidelines.117
E. Element 5: Decision-making Processes
For voluntary DOM, individuals undertaking an activity like
fishing or vessel navigation make independent decisions following
receipt of information from a research or management institution.
For example, the voluntary TurtleWatch program specifies the
location of isotherms118 that encompass most turtle activity and
bycatch in the North Pacific.119
1. Scientific and technological issues
However, this guidance is not
ratified, regulated, or enforced by the management agency. For
compulsory DOM systems, a more formal decision-making process
is required.
The appropriate management agency, research institution, or
NGO generally decides the rules by which the DOM will operate.
http://www.nwfsc.noaa.gov/research/divisions/cb/ecosystem/marinemammal/satellite_t
agging/faq.cfm. (last visited Mar. 30, 2014); see also SOC’Y FOR MARINE MAMMALOGY,
GUIDELINES FOR THE TREATMENT OF MARINE MAMMALS IN FIELD RESEARCH 8, available at
http://www.marinemammalscience.org/images/stories/file/Ethics/Ethics%20Guidelines.
pdf (last visited Mar. 30, 2014) (noting the potential short-term impacts of tagging).
114.Selina Bryan, Tagging Marine Animals: Valuable or Violation?, ABC ENV’T, Apr. 11,
2011, available at
http://www.abc.net.au/environment/articles/2011/04/11/3186168.htm.
115.See, e.g., Clive R. McMahon et al., Applying the Heat to Research Techniques for
Species Conservation, 21 CONSERVATION BIOLOGY 271, 271 (2006).
116.See NAT’L OCEANIC & ATMOSPHERIC ADMIN. FISHERIES, supra note 113.
117. See, e.g., MARKUS HORNING, APPLICATION FOR A PERMIT FOR SCIENTI FIC
RESEARCH TO ENHANCE THE SURVIVAL OR RECOVERY OF A STO CK UNDER THE MARINE
MAMMAL PROTECTION ACT AND THE ENDANGERED SPECIES ACT, 8, 19-20 (2006), available at
http://www.nmfs.noaa.gov/pr/pdfs/permits/horning_ssl_1034-1887.pdf (explaining why
proposed research complies with NOAA’s standards for tag weight as percent of body mass
and use of anesthesia in Stellar’s sea lion research).
118.Isotherms define regions of temperature, for example, the 25°C isotherm.
119. See Howell et al., supra note 2, at 271.
150 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
In the case of regulated activity, the data product generated may
not be the final product that is useful for management agencies.
For example, in Australia, raw habitat preference maps for bluefin
tuna are divided into three management zones, based on
probability of occurrence of tuna habitat.120 These zone decisions
were initially reached by consultation between scientists and the
management agency and required running many simulations so
managers could see potential results of different trade-offs.121
Evaluating trade-offs among resource users and between
conservation goals will be an important component of effective
DOM applications. Online products such as MarineMap
122 and
SeaSketch123 are web-based tools that allow users to explore spatial
data layers and to compare a suite of user-proposed solutions by
referencing pre-defined science- and management-based goals.124
Management agencies may use other spatial information as
part of the DOM decision-making process. The location of
Ecologically or Biologically Significant Areas, Important Bird
Areas, or Key Biodiversity Areas may inform decision-making and
change management action inside these regions.
For example, the merits of a proposed dynamic protected area
could be assessed based on the level of lost fishing activity, how
much farther a fisher must travel and their related fuel costs, and
the conservation benefits for protected species and key habitats.
Integration of multiple objectives maximizes a suite of goals for the
particular spatial management approach. While tools such as
MarineMap and SeaSketch have not yet been applied in a dynamic
context, real-time dynamic applications of these tools are
technically feasible.
125 BirdLife’s
Marine e-Atlas provides details of the location, boundaries, and
qualifying species present at over 3000 priority sites for seabird
conservation.126 It also links to case studies on threats and
management actions underway for species and sites.127
While the decision-making phase is usually not part of the
120.See Hobday & Hartmann, supra note 5, at 373.
121.See Hobday et al., Tagging, supra note 8, at 395-401.
122. MARINE MAP, marinemap.org (last visited Mar. 31, 2014).
123. SEA SKETCH, www.seasketch.org (last visited Mar. 31, 2014).
124. THE NATURE CONSERVAN CY, supra note 48.
125.See Using IBAs in Planning the Protection of Oceans, BIRDLIFE INT’L,
http://www.birdlife.org/datazone/sowb/casestudy/551 (last visited Mar. 31, 2014).
126. Sites – Important Bird Areas, BIRDLIFE INT’L,
http://www.birdlife.org/datazone/site (last visited Mar. 31, 2014).
127. See Marine e-Atlas, BIRDLIFE INT’L,
http://maps.birdlife.org/marineIBAs/default.html (last visited Mar. 31, 2014).
2014] DYNAMIC OCEAN MANAGEMENT 151
scientific contribution to DOM, scientists should be prepared to
engage with this process and provide a range of alternatives. This
allows the management agency to take account of other social and
economic issues. In the case of southern bluefin tuna, scientists
have undertaken a range of analyses that illustrate the
consequences of particular decisions and have been used to refine
the DOM approach (for example, delays in implementation).128
128. See Hobday et al., Season Forecasting, supra note 2, at 909; see also infra Figure 2.
Decision rules may also change over time, and the DOM approach
may be modified. With replicable, accurate processes behind the
generation of things like habitat forecasts, managers can develop
these new decision rules as part of the application of DOM.
152 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
Figure 2: Dynamic Ocean Management for Southern Bluefin Tuna (SBT)
on the East Coast of Australia.
* As zones excluding fishers moved north, vessels were initially given seven days to exit
the region, which disadvantaged SBT. When zones moved south, fishers could move into
the new area (not expected to have SBT) within one day, which disadvantaged the fishers
by only one day. When scientists discussed this issue with the management agency,
managers subsequently implemented a two day delay for all movements of the zones.
2. Legal issues
The legal issues arising in the decision-making element depend
to some extent on whether the DOM approach is part of a formal
regulatory arrangement or a voluntary initiative such as the
TurtleWatch program. For regulatory models, a successful
management decision requires the most appropriate and
responsive governance arrangements. In addition to governance
structure, the policies and regulations that management supports
must also be framed in a way that facilitates DOM. Where legal
restrictions impact DOM, the DOM decision-making agency must
work within its statutory authority to regulate fisheries or other
marine resources. These decisions may be judicially reviewable and
2014] DYNAMIC OCEAN MANAGEMENT 153
challenged if they exceed the agency’s statutory mandate or if the
prescribed decision-making process is not followed. By definition,
DOM is responsive to real-time changes in social (for example
fishing vessel movements) and environmental factors. It therefore
requires high levels of adaptability. Yet legal regimes typically favor
processes resulting in decisions that grant resource users
certainty.129
DOM decisions based only on administrative guidelines and
policies may not withstand judicial scrutiny, in the same way that
courts in the United States have struck down agency decisions
based on administrative policies of adaptive management.
Statutes that specify detailed processes, such as
stakeholder consultation by which marine protected areas and
other restrictions are determined, may therefore significantly
impede the wider use of DOM, since it is unlikely these processes
can be followed within the short timeframes that DOM demands.
130 Yet
courts have carefully explained that dynamic management is not
problematic per se; rather it is only the application at hand that is
problematic.131
129.Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789, 813
(2002) (explaining that the preference for certainty arises from benefits like reduced
transaction costs and efficient decisionmaking). However, the rate of legal change is
increasing rapidly, in part because of the proliferation of extra-legislative bodies at the
national and international levels, which have the power to create law both formally and
informally. Id. at 792.
Where statutory procedures prove to be
impediments to wider uptake of DOM, it may be necessary to
amend these laws. Frameworks will be needed that are based on
outcomes-focused criteria that permit regulatory changes in near
real time on a regular basis, rather than seasonal closures or
130.Cf., e.g., Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 356-57
(E.D. Cal. 2007) (rejecting an adaptive management plan as too uncertain for the
purposes of mitigation under the Endangered Species Act); Carl Folke et al., Adaptive
Governance of Social-Ecological Systems, 30 ANNUAL REV. ENVTL RES. 441, 449 (2005)
(explaining that adaptive governance of ecosystems often balances decentralized and
centralized control, which is spread among quasi-autonomous decisionmaking units); J.B.
Ruhl & Robert L. Fischman, Adaptive Management in the Courts, 95 MINN. L. REV. 424, 445
(2010) (noting that at least thirty-one federal court decisions have considered adaptive
management, of which the United States has lost more than half). The Ninth Circuit
recently fractured on adaptive management-related issues, entering four separate opinions
in a NEPA case; the dissent explained that deference regarding the amount of monitoring
necessary was required because it is an area that demands a high level of technical
expertise. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1202 (9th Cir. 2011) (per
curiam).
131.Ruhl & Fischman, supra note 130, at 447. For example, in Kempthorne, while the
court carefully noted that all parties agreed to the benefits of adaptive management, it
nonetheless rejected the adaptive management practice at issue because it was not
reasonably certain that appropriate mitigation would be implemented, as required by the
Endangered Species Act. 506 F. Supp. 2d 322, 356 (E.D. Cal. 2007).
154 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
emergency closures due to bycatch.
Similar problems may arise where permits and other statutory
fishing rights purport to confer absolute property rights that
cannot be modified or constrained. Takings claims for
compensation may arise where an agency revokes or limits fishing
rights pursuant to DOM decision-making.132 At present, some
regimes allow for emergency closures mid-season or for closure
following the maximum take of a protected species.133 If DOM is to
become the “new normal” model of marine resource decision-
making, however, invocation of these exceptional powers will be
insufficient. It will be necessary for permit conditions to clarify that
changes may be made at any time and multiple times throughout a
season, as occurs in management of the Eastern Australian
Longline Fishery.134
Other potential issues might arise if the information upon
which a DOM decision is made proves to be inaccurate. Generally,
courts only overturn administrative decisions where they are
manifestly unreasonable, or arbitrary or capricious.
135 Agencies
receive even greater deference when relying on scientific
expertise.136
Fishers could potentially challenge those organizations that
collect and process the data upon which decisions are made,
although it may be virtually impossible for an individual fisher to
prove that a closure or other restriction was based on incorrect
data and that this closure caused them economic loss. Appropriate
If the data underpinning a DOM decision prove to be
incorrect, it may provide grounds to overturn the closure or other
restriction, but would probably not entitle the fisher to claim
compensation from the management agency for any losses
incurred as a result of the closure.
132.It is unclear how this would play out in an international regulatory context. See,
e.g., Vicki Been, The Global Fifth Amendment: NAFTA’s Investment Protections and the Misguided
Quest for an International Regulatory Takings Doctrine, 78 NYU L. Rev. 30, 141-42 (2003)
(arguing that an expansive takings doctrine would be inappropriate in the international
regulatory context).
133. See, e.g., Grantham et al., Closures, supra note 3, at 291.
134.See Hobday et al., Seasonal Forecasting, supra note 2, at 899.
135.5 U.S.C. § 706(2)(a) (2012); accord Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 844 (1984).
136.See Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 212 (D.D.C. 2005) (“It is
especially appropriate for the District Court to defer to the expertise and experience of
those individuals and entities whom the Magnuson-Stevens Act charges with making
difficult policy judgments and choosing appropriate conservation and management
measures based on their evaluations of the relevant quantitative and qualitative factors.”)
(quoting Nat’l Fisheries Inst. v. Mosbacher, 732 F.Supp. 210, 223 (D.D.C.1990)).
2014] DYNAMIC OCEAN MANAGEMENT 155
disclaimers can minimize this risk of liability. Disclaimers should
state that the user accepts that the information is only a best
available estimate and that the supplier gives no express or implied
warranty as to its accuracy. If the information is provided on a
website, the user should have to accept the terms and conditions
before gaining access to the site. Alternatively, if the information is
made available on a subscription basis, the written contract should
also provide that it is provided without any express or implied
warranty.
F. Element 6: Implementation
1. Scientific and technological issues
Successful implementation of a DOM approach will require a
suite of tools. For example, users from one sector (for example,
shipping) may require geo-referenced information on existing
closures or coincident activities by users from other sectors (for
example, oil and gas). Some sectors may require information on
changes in market conditions as stand-alone output or as a linked
function of oceanographic conditions or management closures.
These tools will need the flexibility to display results in familiar
unit conventions (for example, degrees Celsius versus Fahrenheit
or Universal Transverse Mercator versus latitude/longitude). Web
services supporting innovative uses of mobile devices and near-real-
time map generation and distribution will be needed to augment
continued delivery of information via radio, phone, fax, and email.
In recent years, several such tools have been developed to meet
these needs for fisheries.137 These applications give end users an
accessible way to capture, identify, visualize, and share spatially
explicit data and model output. For example, the Food and
Agricultural Organization’s (FAO) Fisheries Activity Simulation
Tool allows comparison of different fishing strategies based on
different spatial restrictions.138
137.See, e.g., THE NATURE CONSERVANCY, supra note 48.
Given that end users of DOM also
play a central role in collecting and utilizing data underpinning
the approaches, these tools represent an important step in
engaging these end users, developing DOM tools, and
encouraging compliance for fisheries and other sectors such as
shipping. Additionally, commercial services like Roffer’s Ocean
138.See Fisheries Activity Simulation Tool, UNITED NATIONS FOOD & AG. ORG.,
FISHERIES & AQUACULTURE DEP’T, http://www.fao.org/fishery/topic/4110/en (last visited
Mar. 31, 2014).
156 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
Fishing Forecasting Service and Seastate provide fishers with
actionable information within an operational timeframe.139
2. Legal issues
To be
successful, DOM must do likewise and match the temporal and
spatial scales to operations across sectors. Future applications that
can incorporate and integrate multiple data streams, sources, and
types, and help user groups weigh costs and benefits of a particular
activity in real time will be needed in the next generation of DOM
implementation tools.
Compulsory DOM depends on the ability to distribute
regulations and restrictions quickly and effectively to all relevant
stakeholders. These changes must be widely broadcast to notify
marine users who are active in the relevant region. Legal notice of
changes is critical in enforcement actions. A breach may be
dismissed if changed requirements are not adequately
communicated. Agencies considering the implementation of DOM
approaches must therefore ensure that the system for
communicating changes is specified in relevant permits and
authorizations. Ideally, vessels should be required to acknowledge
receipt of new information. In many locations, fishing vessels must
have VMS.140 These systems use radio equipment to communicate
fisheries information via satellite to onshore operators who also
have access to a vessel’s position, course, and speed.141
G. Element 7: Enforcement and Compliance
1. Scientific and technological issues
Without compliance to support DOM decisions, the expected
benefits are not likely to be realized. While DOM programs may be
mandatory or voluntary, voluntary measures have had limited
success, particularly in the open ocean. For example, the success of
the final Rule to Implement Speed Restrictions to Reduce the
Threat of Ship Collisions with North Atlantic Right Whales has
139. See ROFFER’S OCEAN FISHING FORECAST SERVICES, http://www.roffs.com/ (last
visited Mar. 31, 2014).
140.SEE AUSTL. COMMC’N AND MEDIA AUTH., MARINE SATELLITE COMMUNICATIONS
AND VESSEL MONITORING SYSTEMS 1 (2001), available at
http://www.acma.gov.au/webwr/aca_home/publications/reports/info/vessel-
monitoring-systems.pdf (noting that “[f]isheries management authorities throughout the
world are progressively requiring commercial fishing operators to fit their vessels with
VMS”).
141.Id.
2014] DYNAMIC OCEAN MANAGEMENT 157
been limited despite the Rule’s robust design.142 Under the Rule,
ships are requested to slow down in areas where there is an
aggregation of North Atlantic right whales.143 Ships receive notice
of these aggregations through a variety of mechanisms, including
NOAA Weather Radio broadcasts that are transmitted regularly for
the full duration of the DOM area, United Coast Guard (USCG)
broadcast notices to mariners, an email distribution list, a
mandatory ship reporting automatic return message to vessels,
postings on the NMFS Office of Protected Resources ship strike
website and Northeast Fishers Science Center interactive right
whale sightings “mapper,” and automatic return messages sent to
mariners requesting information by e-mail.144 Despite this range of
communication tools, the voluntary measures have had limited
success. The recorded speed reductions have been minimal.
Reviews of the program recommend mandatory measures.145
A range of technical options now exists to evaluate compliance
with DOM requirements. Fishing vessels can be monitored with on-
board observers, VMS, and by satellite.
146 Observer programs can
monitor levels of seabird bycatch and track the progress of
mitigation measures. VMS has become an essential component of
monitoring control and surveillance programs across many
regions.147 Approved VMS equipment and operational use vary
according to country requirements. Leaving aside the potentially
prohibitive cost of VMS for some areas, using VMS to monitor
vessel movements requires assurance that vessels will not be able to
override VMS data about their boats’ locations.148
142. Speed Restrictions to Protect North Atlantic Right Whales, 73 Fed. Reg. 60,173,
60,174 (Oct. 10, 2008) (codified at 50 C.F.R. pt. 224).
The European
Union has addressed this problem by requiring technical
specifications for VMS tracking devices, known as vessel detection
systems, that prevent vessel operators from overriding VMS
143.Id. at 60,174.
144. Id.
145. GREGORY K. SILBER & SHANNON BETTRIDGE, AN ASSESSMENT OF THE FINAL RULE
TO IMPLEMENT VESSEL SPEED RESTRICTIONS TO REDUCE THE THREAT OF VESSEL COLLISIONS
WITH NORTH ATLANTIC RIGHT WHALES, NAT’L OCEANIC & ATMOSPHERIC ADMIN.
TECHNICAL MEMORANDUM NMFS-OPR-48 at 1 (2012).
146. See Molenaar & Tsamenyi, supra note 46, at 80.
147. See id. at 32-40 (describing the use of VMS in monitoring programs in several
countries).
148. Kristina M. Gjerde et al., Ocean in Peril: Reforming the Management of Global Ocean
Living Resources in Areas Beyond National Jurisdiction, 74 MARINE POLLUTION BULL. 540, 544
(2013) (noting that “[i]t is often easy to . . . disable vessel monitoring systems”).
158 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
systems.149 In the United States, the cost of VMS systems may
provoke legal challenges. Under the MSA, for example,
conservation measures must minimize costs and adverse economic
impacts on fishing communities.150 In Blue Water Fisherman’s
Association v. Mineta, the D.C. District Court found that regulations
requiring VMS on all United States pelagic longline vessels with
permits to fish for highly migratory Atlantic species violated the
MSA because the regulation was not narrowly tailored.151
Where DOM programs operate on a voluntary basis, there are
no real enforcement strategies available in cases of non-
compliance. Where compliance with DOM decisions is
mandatory—by virtue of regulations or permit conditions—
enforcement still requires real-time access to high-quality
compliance data.
The VMS
requirement at issue was not limited to those vessels that would
encounter closed or restricted areas. Because DOM would require
a large number of vessels to install VMS or similar systems, as in
Mineta, it is thus unclear whether such a requirement would be
consistent with the MSA.
2. Legal issues
Successful enforcement proceedings against ocean users who
breach DOM decisions will require clear, unambiguous legal
requirements. There must be evidence that regulations have been
communicated to affected users and evidence that users breached
the regulations. Finally, the violating vessels must be apprehended
or sanctioned. The development of Unmanned Maritime Systems
(UMS) including both waterborne AMVs and aerial unmanned
systems promises to provide greater compliance and enforcement
opportunities. The USCG is experimenting with unmanned
surface vehicles such as wave gliders, coupled with unmanned
aerial systems, to gather and relay data regarding illegal fishing to
appropriate enforcement agencies.152
149. See INST. FOR THE PROTECTIO N AND SEC. OF THE CITIZEN, FISHREG: SCIENTIFIC
& TECHNICAL SUPPORT OF THE COMMON FISHERIES POLICY, THE VESSEL DETECTION SYSTEM
1 (2007), available at http://ec.europa.eu/research/press/2007/maritime-
briefing/pdf/43-vessel-detection-system-fisheries_en.pdf.
Enforcement officials can
use this data to detain vessels at the dock rather than attempting to
intercept the vessels at sea.
150.16 U.S.C. § 1851(a)(8) (2012).
151.122 F. Supp. 2d 150, 169 (D.D.C. 2000).
152.See Vasilios Tasikas, Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit: A New
Era of Coast Guard Maritime Law Enforcement Operations, 29 TUL. MAR. L.J. 59, 66 (2004).
2014] DYNAMIC OCEAN MANAGEMENT 159
While promising in theory, this approach must overcome legal
obstacles. In particular, data must be authenticated and validated
to ensure that it is admissible in legal proceedings. To ensure that
remote monitoring data is admissible, the submitting agency must
be able to establish the violation’s exact location, date, and time,
the data’s reliability, and the data chain of custody’s integrity.
Undoubtedly, there will be test cases in which the admissibility of
remotely gathered data is ascertained, just as test cases were
brought to challenge the use of radar to control speeding motor
vehicles.153
Which national or sub-national government has jurisdiction
will depend on the location of the infraction and on legal
instruments through which DOM decisions are implemented.
There may be some circumstances in which there is overlap
between the jurisdictional reach of national and state or provincial
government fisheries laws. For enforcement beyond a sub-national
government’s territorial waters (typically three nautical miles), the
national government will have exclusive jurisdiction.
154
DOM programs that operate on the high seas and across the
national waters of multiple countries will face the same
enforcement challenges that plague international maritime law
more generally. Enforcement mechanisms under international
conventions may offer some guidance. For example, enforcement
of the Convention on the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific
Ocean falls principally to the flag state of a vessel that is in
violation.
Within the
three-mile zone, either the state or federal governments may be
entitled to bring enforcement proceedings, depending on the
legal instruments by which DOM decisions are implemented.
155
153. See, e.g., Yolman v. State, 388 So.2d 1038, 1039-40 (Fla. 1980) (affirming the use
of doppler radar to determine speed accuracy).
The Convention incorporates a regional-observer
program charged with data collection and monitoring
implementation. The program also uses satellite imagery to track
154. See United Nations Convention on the Law of the Sea (UNCLOS), art. 3 opened
for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994) (defining
zone of exclusive jurisdiction at three nautical miles); accord Proclamation No. 5928,
Territorial Sea of United States of America, 54 F.R. 777, 777 (Dec. 27, 1988) (proclaiming
three nautical miles as American territorial sea); Maritime Zones and Boundaries, NAT’L
OCEANIC & ATMOSPHERI C ADMIN. (Aug. 12,
2013), http://www.gc.noaa.gov/gcil_maritime.html (defining U.S. zone of exclusive
jurisdiction as three nautical miles).
155. Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean, arts. 23(2)(c)(4), 24, June 19, 2004
160 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
fishing vessels within the Convention area; information is passed
simultaneously to flag states and the Convention. Vessels must use
near real-time satellite position fixing transmitters when they are
within certain protected areas.156 Procedures are intended to
“protect the confidentiality” of VMS information, and member
states cooperate to ensure the compatibility of national and high
seas VMS.157
III. IMPLEMENTING THE SEVEN ELEMENTS OF DYNAMIC MANAGEMENT
A. Capacity for Dynamic Ocean Management
Before identifying a DOM approach for a particular policy
goal, it is important to consider the legal system and user-oriented
capacities of that system. While the benefits of DOM may be
advantageous for a broad range of issues, the ultimate success of a
dynamic approach will be determined by how well it fits the
specific location and management challenge.
Protected areas that move among different sovereign waters
may encounter problems of coordination in the decision-making,
implementation, and enforcement elements. Further adding to
the challenge is that countries and businesses may view dynamic
fisheries management as an economic threat: providing fisheries
data could lead to limits or bans on catches.158
In addition, language and communication barriers could
create fragmented implementation, enforcement, and
coordination problems. Any DOM effort that stretches beyond a
single country’s borders must promote training and education in
relevant scientific, management, technological, and legal capacity.
These efforts should promote intercultural understanding so that
programs and enforcement efforts are consistent with various
cultural norms and institutions. Furthermore, programs should
incorporate regional negotiations so that less powerful countries
have a voice. Inclusive modes of decision-making also will create a
Incentivizing honest
and transparent participation likely will be an essential component
of any successful DOM program.
156.Sean D. Murphy, Conservation of Fish in the Western and Central Pacific Ocean, 92
AM. J. INT’L L. 152, 154 (2001).
157.Id. (noting that “[t]he procedures adopted by the Commission shall include
appropriate measures to protect the confidentiality of information received through the
vessel monitoring system. Any member of the Commission may request that waters under
its national jurisdiction be included within the area covered by such vessel monitoring
system.”).
158. See, e.g., Grantham et al., Closures, supra note 3, at 291.
2014] DYNAMIC OCEAN MANAGEMENT 161
collaborative environment that promotes cooperation.
Challenges also exist for extending capacity and willingness to
resource users. Fishers or other stakeholders may perceive DOM
approaches as frequently changing regulations that are difficult to
plan for and comply with. This may challenge policymakers, who
might receive frequent complaints and resistance, to persist in
using DOM. Thus a key element for a successful DOM program
will be policymakers effectively communicating that DOM will
reduce overall restrictions, for example, by reducing the amount
of closed areas, and benefit by increasing profits. A related
challenge will be enhancing user capacity such that all users who
are subject to DOM regulations have both the technical means and
appropriate education and training to abide by the rules.
Equipping users with vessel and communication technologies
discussed above—such as mobile phones, VMS, and other
environmental gauges—will be essential so that they can receive,
process, and implement DOM measures while at sea. Furthermore,
users must understand the objectives and specifications of the
management approach in order to respond properly and
consistently to dynamic regulations. One example of this
consideration is the potential presence of language barriers
between managers and users. Heterogeneous systems where users
are characterized by differing technical capacity, backgrounds, and
training levels present challenging situations and may undermine
DOM if only a select group of users is capable of implementing the
management program.
These considerations represent only a few of the ways in which
some systems may better lend themselves to certain types of DOM
than others. Accounting for differences in governance, scale, and
user background are essential for successful management,
particularly of dynamic approaches. But because DOM is flexible
by design, the technologies and policies of various approaches may
be adapted to respond to a suite of different contexts and
circumstances.
B. Sustainability of Dynamic Ocean Management
Requirements for DOM include management capacity to
support DOM tools in terms of expertise, computer systems and
software, and the ability to maintain these needs within existing
and future financial constraints. Understanding the specific needs,
requirements, and capabilities of management and other user
groups is therefore a critical first step for effective DOM. If a
162 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
regulatory agency develops a DOM program, then these needs are
most likely to be met and the stages in the DOM approach well
connected. However, if the models and tools are developed by
other institutions,159 then the DOM program may need to be
transitioned to the management agency for operational use.160
In adapting to the changing ocean environment, DOM
maximizes benefits to the ecosystem and reduces conflicts with
human activities. Achieving this result requires regular
information about the ocean environment. The availability and
accessibility of data now and in the future should therefore be
considered when determining the most appropriate inputs for
creating not just an ecological model, but a sustainable,
operational DOM tool. The availability of required environmental
inputs may change because of changes to sensors or to funding.
For example, calibrations of the derived sea surface chlorophyll
concentrations were necessary when the ocean color sensor
SeaWiFS (Sea-viewing Wide Field-of-view Sensor) was replaced by
MODIS (Moderate Resolution Imaging Spectroradiometer).
This will require communication between the developer and
management agency to ensure that the user is prepared for the
necessary computer system and/or data storage requirements and
is trained on how to use, interpret, and apply the tools developed
to implement a DOM program. Appropriate software licenses and
data agreements may be required if the DOM tool requires
particular programs or information to function.
161
There are concerns that the new replacement, VIIRS (Visible
Infrared Imaging Radiometer Suite), has a lower spatial resolution
than MODIS.162
Additionally, a number of key environmental variables are
derived from data collected by sensors on satellites. Many of these
products from American satellites are currently available from the
National Aeronautics and Space Administration for free, but their
availability is not guaranteed for the future.
A lower spatial resolution could limit some
ecosystem monitoring applications in the future.
163
159. See discussion supra Parts II(A)-(D); Figure 1.
As some satellite
sensors will reach the end of their lifespan before the next ones
160. See discussion supra Parts II(E)-(G).
161. See OCEAN PRODUCTIVITY, supra note 103.
162. Robert E. Murphy et al., Using VIIRS to Provide Data Continuity with MODIS, 3
GEOSCIENCE & REMOTE SENSING SYMP. 1212, 1212 (2001).
163. See VIIRS Products, NAT’L AERONAUTICS & SPACE ADMIN. SHORT-TERM
PREDICTION RES. & TRANSITION CTR.,
http://weather.msfc.nasa.gov/sport/jpsspg/viirs.html (last visited Apr. 3, 2014).
2014] DYNAMIC OCEAN MANAGEMENT 163
are launched, there may be a lack of continuity in data. Some
countries already charge for access to their satellite-produced data.
Such costs should be considered when calculating the expense of
maintaining DOM tools. Ocean models alternatively may be used
as environmental inputs in habitat preference models.164 As with
all models, these may be subject to modification over time. It is
therefore advisable to have a mechanism in place for
incorporating updated model inputs into existing products. This is
also the case for data on animal distributions. Although longer-
term datasets may include species distributions during a range of
natural variations, there may be changes to ocean conditions in
the future. Such future conditions may include higher water
temperatures as a result of climate change than previously
experienced.165
IV. CONCLUSION
Determining the responses of marine species and
humans to such conditions will require other data sources or new
data collection to validate, and if necessary, modify the products so
that they continue to provide accurate outputs for DOM.
Given all the scientific, legal, and political challenges outlined
above, it is reasonable to question whether a full exploration of the
science and policy potential of DOM is worthwhile and sensible.
While it may require a major shift in how we manage marine
resources in some areas and sectors, it is necessary to increase the
sustainability of ecological and economic benefits derived from
marine systems. We caution, however, that DOM may not be
appropriate for all species, particularly in coastal areas where
species are sessile and slow growing, or living on the ocean floor.
In such cases, DOM may inadvertently expose species needing
long-term protection.166
TurtleWatch and dynamic management areas to reduce whale
strikes provide the opportunity for ocean users to reduce their
164.Id.
165.See Alistair J. Hobday et al., Climate Impacts and Oceanic Top Predators: Moving from
Impacts to Adaptation in Oceanic Systems, 23 REVS. FISH BIOLOGY & FISHERIES, 537, 538 (2013)
(referencing global warming as an impact on oceanic ecosystems being investigated).
166.See Laura Rogers-Bennett et al., Dramatic Declines in Red Abalone Populations after
Opening a ‘‘De Facto’’ Marine Reserve to Fishing: Testing Temporal Reserves, 157 BIOLOGICAL
CONSERVATION, 423, 431 (2013) (concluding that adopting potentially short-term marine
reserves which are periodically opened for fishing for long-lived species, like abalone and
tuna, may be insufficient to protect the species).
164 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2
impact on protected species on a voluntary basis.167 Whether these
systems should, under some conditions, be mandatory is a
regulatory decision. This article provides examples of challenges
and opportunities for making DOM compulsory. It also considers
one of the few examples where DOM is mandated, the Eastern
Australian longline fishery.168 While we explore the existing
technologies available for DOM, future technologies could make
DOM increasingly attractive and inexpensive. Costs will likely
decrease as satellite-based communications become more
accessible to ocean users. For example, the costs of satellite-based
communication devices may decrease over time. Costs will be
further decreased as new data gathering and enforcement
technologies are developed, such as less-expensive and longer-
range alternatives to AMVs and gliders. Furthermore, if the ocean
users themselves became more engaged in reporting species
interactions or remotely recording species’ spatial behavior, this
information could be incorporated in updating projected
conflicts.169
DOM, as described here, is a relatively expensive approach to
marine management, particularly in the early stages as data are
collected and data handling systems implemented. Beyond the
technical and legal issues described here, successful and enduring
DOM approaches will require genuine long-term commitment by
regulators. To that end, demonstration of the biological, social,
and economic benefits of DOM will be critical to wider application
and uptake. In order for DOM to be effective and worthwhile to all
stakeholders, it must adequately protect both species of concern
and opportunities for humans to use marine systems. The benefits
exchange should explore whether we can protect fishing and
shipping opportunities while also protecting species of concern
from collateral damage. While adequate resources must be
dedicated to developing DOM approaches, systems can be
designed with long-term sustainability in mind, thereby causing
costs associated with management to decline with time. There is
significant scientific potential for more precise, dynamic
167.See Howell et al., supra note 2, at 276 (noting that TurtleWatch is a voluntary
program); Van Parijs et al., supra note 59, at 22 (describing potential applications of
passive acoustic monitoring for tracking cetaceans and omitting any description of the
technology being deployed as a regulatory requirement).
168. See Hobday et al., Seasonal Forecasting, supra note 2, at 898.
169.For example, a variation on traffic accident reporting applications available for
mobile devices, such as Waze, could be developed for ocean users to report species
interactions. See WAZE, https://www.waze.com/livemap (last visited Mar. 30, 2014).
2014] DYNAMIC OCEAN MANAGEMENT 165
approaches to managing ocean systems in a way that protects the
interests of ocean users as well as effectively managing sensitive
mobile marine species.
