By Rich Holland, WONews.com
October 13, 2009
Should we sue to keep surfers and scuba divers out of State Marine Reserves?
All of a sudden it seems we have that option. Wouldn't it be nice to impose the same fate the bubble blowers and gross polluters (foam/glass boards are one of the least green products on the globe) have wished on us? Miles and miles of what they took for granted as a natural heritage ripped from their grasp, all at the whim of the monied few.
At the heart of this debate is the question: What is a true marine reserve? You might be surprised to note that, prior to the passage of the Marine Managed Area Improvement Act of 2000, many considered some forms of fishing to be an allowable use in reserves.
The MMAIA, however, goes into great detail on what should and should not be allowed in what it calls a State Marine Reserve.
Section 36710, subdivision (a), of the MMAIA states:
"In a state marine reserve, it is unlawful to injure, damage, take or possess any living, geological, or cultural marine resource, except under a permit or specific authorization from the managing agency for research, restoration, or monitoring purposes. While, to the extent feasible, the area shall be open to the public for managed enjoyment and study, the area shall be maintained to the extent practicable in an undisturbed and unpolluted state. Access and use for activities including, but not limited to walking, swimming, boating, and diving may be restricted to protect marine resources. Research, restoration, and monitoring may be permitted by the managing agency."
I added the boldface.
The reason for this discussion comes in the form of an informal letter of advice from Jerry Brown's Attorney General's office to the Natural Resources Agency regarding issues such as allowable uses, designation, oversight and enforcement of marine protected areas in the State of California.
In the Marine Life Protection Act Initiative process' haste to snatch up coastal resources, the I-Team has made several administrative errors, with the two most glaring the misunderstanding of the role of the State Department of Parks and Recreation and the necessary restrictions for a true reserve.
A lot of this stems from buying into the concept of a physical network rather than an administrative network. In the wholesale acceptance of one, the basic need of the other was ignored.
One reason the MMAIA and MLPA legislation passed so easily is because it was plain to see that California's existing marine protected array was an unorganized hodge-podge of undersized and underfunded sites that actually protected little of the coastline.
So the MLPA rightfully call for a system of MPAs to be managed as a networks and specifically calls for an increase in the size and number of State Marine Reserves. Even more than that, the act expanded on the concept of a reserve beyond that described by the MMAIA:
"Notwithstanding any other provision of this code, the taking of a marine species in a marine life reserve is prohibited for any purpose, including recreational and commercial fishing, except that the [Fish & Game Commission] may authorize the taking of a marine species for scientific purposes, consistent with the purposes of this chapter, under a scientific collecting permit issued by the DFG."
The Attorney General's office notes that "Neither the MLPA nor the MMAIA defines injure, damage, take, or possess" and suggests that regulations are adopted to fill that gap, using Federal Endangered Species Act language that "defines harm, a term synonymous with injure and damage, as 'an act which actually kills or injures wildlife.' It further provides that such act may 'include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.'”
The MLPA I-Team quickly jumped to interpret the letter to meet their own ends, going so far as to couch their take in terms likely to inflame opponents of a State Marine Reserve in Del Mar, in particular the city government of Del Mar, by noting that activities such as sand replenishment are prohibited in a reserve.
Ironically, both the I-Team and the AG's office use the same section of the MLPA legislation to bolster their arguments.
The AG notes: "A stated goal of the MLPA is '[t]o improve recreational, educational, and study opportunities provided by marine ecosystems that are subject to minimal human disturbance, and to manage these uses in a manner consistent with protecting biodiversity.”
The AG's office added the emphasis on "minimal human disturbance" and as a result it's conclusion is "DFG and DPR may not allow activities that injure, damage, take or possess marine resources in marine reserves."
The I-Team staff, however, puts the intent of the non-governmental Blue Ribbon Task Force above the language of the law and uses the same passage as justification:
"The MLPA relies upon the MMAIA to define the types of MPAs and uses that are allowed within those MPAs. The MMAIA indicates that, to the extent possible, MPAs should be open to the public for managed enjoyment and study. In addition, goal 3 of the MLPA is focused on improving recreational, educational and study opportunities afforded by MPAs subject to minimal human disturbance. As was indicated at its July 2009 meeting, staff understands that it is not the intent of the MLPA Initiative Blue Ribbon Task Force to prevent human use of, or access to, MPAs for non-extractive activities, such as swimming, wading, diving and boating. This intent of the BRTF, and subsequent guidance to the SCRSG, is consistent with the informal advice provided by the AG’s office."
This time the emphasis is mine, but as the I-Team likes to say, "is consistent" with their interpretation of the act.
While any fool can see the BRTF's sole intent is the elimination of fishing in prime coastal habitats, the reality is other activities, such as simply walking out on an anemone covered reef to jump into the surf, contain the potential to bring grave harm to the environment, not to mention the mental anguish sure to be experienced by birds and mammals when exposed to humans. That could lead to lost clutches and pups, which I defy you to define as anything other than injury.
And the Natural Resources Defense Council, one of the authors of the MLPA, knows that. So if some disgruntled fisherman doesn't sue first, the NRDC will.
Count on it.