The International Whaling Convention and Legal Issues Related to Aboriginal Rights

Kristina Alexander
Legislative Attorney

The International Whaling Commission (IWC) has 89 members divided almost evenly between countries that condone whaling and those that favor whale conservation. This situation leads to contentious votes and accusations that decisions are not based on science but on politics, in particular, whether or not a country favors whaling. Members of Congress have introduced measures to advance U.S. policy within the Commission to respond to IWC actions. One area of contention is the right of aboriginal groups to hunt whales (sometimes referred to as indigenous whaling). Aboriginal subsistence whaling catch limits are set by the IWC for aboriginal peoples in four countries: the United States (bowhead and gray); Denmark (Greenland) (fin, minke, bowhead, and humpback); Saint Vincent and the Grenadines (humpback); and Russia (gray and bowhead).

The International Convention for the Regulation of Whaling (the Convention) has addressed aboriginal whaling since it was signed on December 2, 1946, by the United States and 14 other countries. The Convention limits how many bowhead or gray whales U.S. aboriginal groups may harvest by setting catch limits for five-year periods. The current period is from 2008 through 2012.

Whaling also is restricted in the United States by three domestic laws: the Marine Mammal Protection Act (MMPA); the Endangered Species Act (ESA); and the Whaling Convention Act (WCA). The MMPA prohibits all whaling except for subsistence use by Alaska Natives. Similarly, the ESA prohibits taking listed whales except for subsistence use by Alaska Natives. The WCA, the enabling act for the Convention, allows whaling by aboriginal peoples to the extent it does not conflict with the Convention. Despite these statutory exceptions allowing aboriginal whaling, the Secretary of Commerce can restrict such whaling by adopting specific regulations under either the MMPA or the ESA. Currently, only the Cook Inlet stock of beluga whales is protected under such regulation. The Makah Tribe (in the State of Washington) is the only non-Alaska indigenous group in the United States with the legal right to kill whales. This right is based on treaty, but the Makah must still comply with the MMPA by receiving a permit that allows whale harvest. Compliance with U.S. law and the Convention determines the types and numbers of whales and where and when they are killed.

Past Congresses have considered legislation to direct U.S. policy whaling, but no legislation is pending in the 112th Congress. Legislation proposed in the 111th Congress addressed ending all nonaboriginal whaling, including scientific whaling (H.R. 2455, S. 3116), and would have made the U.S. representative to the IWC a federal employee (H.R. 2955). Previous Congresses have addressed whaling in general, and aboriginal whaling in particular. Legislative measures, primarily in the form of concurrent resolutions, have been proposed in four categories: protesting commercial, scientific, or community (nonaboriginal) whaling; ensuring aboriginal whaling rights; providing a tax break for aboriginal whaling captains; and addressing the United States’ policy at the annual meetings of the IWC.


Date of Report: September 21, 2011
Number of Pages: 18
Order Number: R40571
Price: $29.95

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National Park System: Establishing New Units

Carol Hardy Vincent
Specialist in Natural Resources Policy

The National Park System (System) includes 395 diverse units administered by the National Park Service (NPS) of the Department of the Interior. Units generally are added to the National Park System by acts of Congress, although the President may proclaim national monuments for inclusion in the System on land that is federally managed. An act of Congress creating a Park System unit may explain the unit’s purpose; set its boundaries; provide specific directions for land acquisition, planning, uses, and operations; and authorize appropriations for acquisition and development. Today, there are more than 20 different designations (i.e., titles) for units of the National Park System, reflecting the diversity of the areas. There is no statute that sets out and defines all the designations, and Congress has discretion in choosing the type of designation for a unit being established.

Before enacting a law to add a unit, Congress often first enacts a law requiring the NPS to study an area, typically to assess its national significance, suitability and feasibility, and other management options. When Congress directs the NPS to prepare a study, the agency must assess whether an area contains natural or cultural resources that are nationally significant, constitutes one of the most important examples of a type of resource, and is a suitable and feasible addition to the Park System. The agency also is to consider certain factors established in law (e.g., threats to resources) to promote the consistency and professionalism of the studies.

The Secretary of the Interior is required by law to recommend annually to Congress a list of areas for study for potential inclusion in the National Park System. The Secretary also must submit to Congress a list of areas previously studied that contain primarily historical resources, and a list of areas with natural resources. Previously studied areas are to be ranked in order of priority for consideration of addition to the Park System. For FY2010-FY2012, the Obama Administration has not submitted lists of areas for potential study for addition to the Park System. Instead, the Administration is focusing on completing authorized studies and other current responsibilities, such as facility maintenance.

The addition of units to the National Park System sometimes has been controversial. Some discourage adding units, asserting that the System is “mature” or “complete,” while others assert that the System should evolve and grow to reflect current events, new information, and reinterpretations. A related issue is how to properly maintain existing and new units given limited fiscal and staffing resources. Differences exist on the relative importance of including areas reflecting our natural, cultural, and social history. The adequacy of standards and procedures for ensuring that the most outstanding areas are included in the Park System also has been debated.

It is generally regarded as difficult to meet the criteria and to secure congressional support and funding for expanding the National Park System. Thus, another issue has been whether particular resources are better protected outside the National Park System, and how to secure the best alternative protection. Certain areas that receive technical or financial aid from the NPS, but are neither federally owned nor directly administered by the NPS, include affiliated areas and national heritage areas. Some programs give places honorary recognition. The NPS also supports local and state governments in protecting resources through grants for projects and technical assistance.


Date of Report: September 21, 2011
Number of Pages: 10
Order Number: RS20158
Price: $29.95

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Fishery, Aquaculture, and Marine Mammal Issues in the 112th Congress

Eugene H. Buck
Specialist in Natural Resources Policy

Harold F. Upton
Analyst in Natural Resources Policy

Fish and marine mammals are important resources in open ocean and nearshore coastal areas; many federal laws and regulations guide their management as well as the management of their habitat. Aquaculture or fish farming enterprises seek to supplement food traditionally provided by wild harvests.

Commercial and sport fishing are jointly managed by the federal government and individual states. States generally have jurisdiction within 3 miles of the coast. Beyond state jurisdiction and out to 200 miles in the federal exclusive economic zone (EEZ), the federal government (National Marine Fisheries Service, NMFS) manages fisheries under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) through eight regional fishery management councils. Beyond 200 miles, the United States participates in international agreements relating to specific areas or species. The 112th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries in an attempt to modify the balance between resource use and protection. Additional concerns might include providing additional flexibility in managing harvests to eliminate overfishing; determining the appropriate level of funding for fishery disaster assistance; determining whether to modify fishing vessel capacity reduction and limited access privilege (catch-share) programs; modifying programs to better control bycatch of nontarget species; amending various fishery laws to strengthen enforcement to stop illegal, unreported, and unregulated fishing; amending and reauthorizing the Oceans and Human Health Act; amending and reauthorizing the Coral Reef Conservation Act; enhancing efforts to monitor, restore, and protect marine ecosystems in the Gulf of Mexico; implementing the Antigua Convention for eastern tropical Pacific tuna; authorizing a national strategy to address harmful algal blooms and hypoxia; and providing additional support to maintain the character of traditional fishing communities.

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, yet with little growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 112th Congress may consider whether National Oceanic and Atmospheric Administration policies and regulations can balance development and regulation of the aquaculture industry in the U.S. EEZ, and whether to prohibit regional fishery management councils from authorizing aquaculture in federal offshore waters through fishery management plans and their amendments under the MSFCMA.

Marine mammals are protected under the Marine Mammal Protection Act (MMPA). With few exceptions, the MMPA prohibits harm or harassment (“take”) of marine mammals, unless permits are obtained. It also addresses specific situations of concern, such as dolphin mortality associated with the eastern tropical Pacific tuna fishery. The 112th Congress may consider bills to amend the MMPA, including the John H. Prescott Marine Mammal Rescue Assistance Grant Program, as well as measures to address specific marine mammal habitat and management concerns, such as how to deal with the effects of increasing noise in the ocean and an expanded research program for the recovery of the southern sea otter.

The level of appropriations for fisheries, aquaculture/hatchery, and marine mammal programs administered by the NMFS and the Fish and Wildlife Service may be an issue during the 112th Congress amid pressures to reduce federal spending.


Date of Report: September 16, 2011
Number of Pages: 28
Order Number: R41613
Price: $29.95

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The Endangered Species Act (ESA) in the112th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543) was enacted to increase protection for, and provide for the recovery of, vanishing wildlife and vegetation. Under ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Habitat loss is the primary cause for listing species. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. Accordingly, when certain resources are associated with listed species— such as water in arid regions like California, old growth timber in national forests, or free-flowing rivers—ESA is seen as an obstacle to continued or greater human use of these resources. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline or conflicts. As a result, ESA is considered a primary driver of large-scale ecosystem restoration issues.

The 112th Congress may conduct oversight of the implementation of various federal programs and laws that address threatened and endangered species. This could range from addressing listing and delisting decisions under ESA to justifying funding levels for international conservation programs. The 112th Congress may also face specific resource conflicts involving threatened and endangered species, including managing water supplies and ecosystem restoration in San Francisco Bay and the Sacramento and San Joaquin Rivers Delta in California (i.e., Bay-Delta) and managing water supplies in the Klamath Basin. In the 112th Congress, resource-specific issues may be addressed independently, whereas oversight on the implementation of ESA may be addressed in debates about particular species (e.g., wolves, polar bears, and salmon). P.L. 112-10 (final appropriations for FY2011) included a legislative delisting of a portion of the reintroduced Rocky Mountain gray wolf population.

The 112th Congress may consider legislation related to global climate change that includes provisions that would allocate funds to the Fish and Wildlife Service’s endangered species program and/or to related funds to assist species adaptation to climate change. Other major issues concerning ESA in recent years have included the role of science in decision-making, critical habitat (CH) designation, incentives for property owners, and appropriate protection of listed species, among others.

The authorization for spending under ESA expired on October 1, 1992. The prohibitions and requirements of ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of ESA in each subsequent fiscal year. Proposals to reauthorize and extensively amend ESA were last considered in the 109th Congress, but none were enacted. No legislative proposals were introduced in the 110th or 111th Congresses to reauthorize ESA.

This report discusses oversight issues and legislation introduced in the 112th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: September 16, 2011
Number of Pages: 22
Order Number: R41608
Price: $29.95

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Everglades Restoration: Federal Funding and Implementation Progress

Charles V. Stern
Analyst in Natural Resources Policy

The Everglades is a unique network of subtropical wetlands in South Florida that is approximately half of its historical size, due in part to degradation from federal water projects. In 2000, Congress authorized a 30-year plan, termed the Comprehensive Everglades Restoration Plan (CERP), for the restoration of the Everglades ecosystem in southern Florida. When originally authorized, it was estimated that CERP would cost a total of $8.2 billion and take approximately 30 years to complete. As of 2010, estimates indicate that the plan would take approximately 50 years to implement, and would cost $13.5 billion.

Under CERP, the federal government is required to fund half of the costs for restoration, with an array of state, tribal, and local agencies paying the other half. In addition to activities under CERP, a number of other federal and state efforts (known as non-CERP activities) also contribute to Everglades restoration. While non-CERP efforts are technically not included in the plan under CERP, the two sets of activities are widely viewed as complimentary.

Since passage of CERP in 2000, the federal investment in the Everglades has increased. As of the end of FY2010, the federal government had provided more than $800 million in funding for CERP, with the state providing matching funds for CERP projects, as well as advanced funding (i.e., land acquisition) for some potential future CERP projects. At the same time, federal funding for non-CERP activities has also continued over this time period and totals an estimated $2 billion.

Progress has been made on a number of Everglades restoration projects, although overall progress to date has fallen short of some goals. Federal and state agencies note that as of the end of 2009, 60% of the land necessary for restoration projects under CERP had been acquired, and significant progress has been made on non-CERP activities (including water deliveries to Everglades National Park by the Department of the Interior). Construction has also been initiated on several CERP projects (including both pilot and regular projects), and planning and pre-construction efforts are underway for a number of other CERP projects, with construction expected soon for some of these locations. Despite this progress, some projects have seen setbacks in the form of schedule delays and cost escalations. Additionally, new or revised authorizations will be required for many projects. These impediments may have the effect of further delaying restoration efforts.

Recent reductions to state and federal funding have increased the focus on the federal commitment to the Everglades. The debate and resolution of issues surrounding authorization and appropriations for Everglades restoration projects has implications both for ecosystem restoration in Florida and for large-scale restoration initiatives elsewhere. Consequently, Everglades funding receives attention not only from those interested in the Everglades, but also from stakeholders in other restoration initiatives such as those in coastal Louisiana, the Great Lakes, and Chesapeake Bay. This report provides information on federal appropriations for Everglades restoration and discusses related issues. It also provides a brief summary of accomplishments and potential challenges for Everglades restoration.


Date of Report: September 19, 2011
Number of Pages: 11
Order Number: R42007
Price: $29.95

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