of Law; B.S.Chem. 1969, University of Georgia; J.D. 1978, University of Georgia; Post Doc. 1978-1980, Marine Policy and Ocean Management, Woods Hole Oceanographic Institution. 1. NOAA Fisheries reports that eighty-six stocks are currently overfished and sixty-six stocks are experiencing overfishing. The overfished status of 695 stocks remains classified as “unknown or not defined,” and whether overfishing is occurring cannot be determined in the case of 658 stocks because the harvest rate is not known or the threshold for overfishing has not been defined. See NOAA Fisheries, Sustaining and Rebuilding, 2002 Report to Congress, The Status of Fisheries 25, 9 (April 2003) 2. See Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change 40 (May 2003) [hereinafter Pew Oceans Commission Report]. 3. Id. 4. Bycatch is the term used for incidental take in fisheries and refers to “[d]iscarded catch of any living marine resource plus retained incidental catch and unobserved mortality due to a direct encounter with fishing gear. See NOAA Fisheries, Bycatch, http:// www.nmfs.noaa.gov/bycatch.htm#def , quoting Managing the Nation's Bycatch (1998). 5. Pew Oceans Commission Report, supra note 2, at 40. 6. Paul K. Dayton, Simon Thrush, and Felicia C. Coleman, Ecological Effects of Fishing in Marine Ecosystems of the United States (Pew Ocean Commission 2002) [hereinafter Ecological Effects of Fishing] .

Florida’s beaches are critical to the State's economy and provide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) are eroding, with 387 miles of beach (about forty-seven percent) experiencing ‚critical erosion. To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA) directing the State to provide for beach restoration and nourishment projects. The State has spent at least six hundred million dollars on beach erosion control and beach restoration, and the Florida Department of Environmental Protection (DEP) now manages over two hundred miles of restored beaches. In 2006, the Florida First District Court of Appeal put the Florida Beach Erosion Control Program in jeopardy, however, by finding that the BSPA deprived the beachfront property owners of their constitutionally protected riparian rights without just compensation. The case eventually worked its way to the United States Supreme Court. But in the U.S. Supreme Court, the issue of focus was not so whether riparian rights had been unconstitutionally taken - a unanimous Court agreed they had not - but whether the constitution encompasses a doctrine of judicial takings. This article reviews the Florida and U.S. Supreme Courts' dispositions of the case. Although the State prevailed in both cases, from the Florida perspective, the case left many questions about the legal status of beach restoration and application of the BSPA. At the U.S. Supreme Court level, the case provided a flimsy vehicle for Justice Scalia to introduce his theory of judicial takings. Nevertheless, none of the Justices categorically denied the existence of the concept of a judicial taking; four Justices specifically adopted the doctrine, and six Justices agreed that state supreme court decisions that eliminate existing property rights might be unconstitutional. In the end, the case left the law unsettled in a way that will likely incite property rights advocates to continue to cause much ado.

The BP oil spill recently focused the nation’s attention on the importance of beaches to the economies of the states bordering the Gulf of Mexico. These beaches have, however, been under attack for many decades by erosion from storms and other natural forces, as well as construction and maintenance of navigation inlets and rampant coastal development. Sea level rise will exacerbate erosion and loss of beaches. In many Gulf of Mexico states, however, the projected rate of beach loss due to sea level rise is overwhelmed by the current background rate of erosion. In Florida, for example, because the erosion rate is already so substantial, beach restoration and nourishment are considered to be economically viable adaptations to sea level rise for the next 50-100 years. While restoration is arguably not a long-term solution to sea level rise, beach restoration has many benefits over armoring of the shoreline where the level and scale of development makes retreat economically unviable. While armoring may protect structures, it will inevitably lead to loss of beaches, habitat and tidal public trust lands.The continued viability of beach restoration as an adaptation strategy presumes that current legal regimes for carrying out these projects can withstand constitutional challenges and that takings challenges and compensation of littoral property owners will not be part of the cost of the projects. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Florida withstood a first attack on the Beach and Shore Preservation Act as well as a challenge to the Florida Supreme Court’s interpretation of the common law principles embodied in the Act. The case provided the opportunity, however, for Justice Scalia to introduce his theory of a new genre of “takings” under the Fifth and Fourteenth amendments - judicial takings. This symposium article discusses the Stop the Beach Renourishment case in both the Florida and U.S. Supreme Courts and reviews Justice Scalia’s theory of judicial takings. It then discusses the continuing challenges to beach restoration as a beach management and sealevel rise strategy, both from the perspective of the legal issues that remain unresolved and the chilling effect of the specter of judicial taking.

Evidence has piled up to support the proposition that marine reserves increase biomass of overfished stocks. But marine reserves can also perform other services to complement an ecosystem-based approach to management. Research on many marine reserves is showing a spillover effect in abundance of fish in adjacent areas. Designation of marine reserves protects some habitat from the direct effects of fishing and provides areas for recovery and restoration. Marine reserves provide baseline information on habitat to help distinguish natural variability from user impacts. Reserves can serve as experimental sites for ecosystem restoration and studying processes that may be operable throughout an ecosystem or region. Finally, a reserve may provide insurance against excessive exploitation in light of scientific indeterminacy and management uncertainty, and assure the survival of the ecosystem for future generations.

In the late I960s the environmental movement was budding in the United Stales, and a land ethic was quickly emerging. The National Environmental Policy Act of 1961 ushered in a decade of environmental legislation addressing numerous areas of the human environment. In the midst of this environmental awakening, a report entitled Our Nation and the Sea was issued in January 1969 by a presidentially-appointed commission. This report of the Commission on Marine Sciences, Engineering, and Resources, commonly known as the Stratton Commission Report, provided the first comprehensive review and assessment of U.S. ocean policy. Because of its timing, people looking back often presume that the health of the nation's seas was the primary focus of the Stratton Commission Report. This was not the case.

The roots of the legal systems of the United States, Australia and Canada spring from a common English heritage in which protection of property is a prominent feature. Within these societies, when government expropriates private property, there is a presumption and, in some cases, a constitutional compulsion to compensate the owner. In the 1920s, the United States Supreme Court deviated from the principle in American and English law that compensation is required only when a government acquires a legal interest in or takes possession of property. In Pennsylvania Coal Co. v. Mahon, the Supreme Court found that regulating the use of property, in that case Pennsylvania Coal's mineral rights, may also require compensation if the regulation goes too far. Claims of regulatory taking did not become common, however, until the 1970s when land use and environmental regulation became pervasive. Property rights advocates, not only in the United States but also in Australia and Canada, sought more extensive protection when these regulations seriously devalued or limited the use of land. By the 1990s, cases in both Australia and Canada seemed to follow the lead of Mahon by requiring compensation for land use regulations that seriously devalued mineral rights. This paper surveys and compares the development of the concept of regulatory taking in the United States, Australia and Canada, and discusses each country's struggle to balance important public interests reflected in land use and environment regulation with protection of private property, and to develop a consistent theory of regulatory taking.

The Coastal Zone Management (CZM) Act of Belize was enacted in 1998 and reflects the trend in legislation in Belize toward more accountability and transparency for government actions and more direct participation by the public in decision making, particularly concerning public resources. The legislation also recognizes that conservation and development of the coastal zone necessary to assure sustainable development requires an integrated approach to coastal zone management to deal with the complexities arising from the natural and human interactions in the area where land meets sea. The CZM Act relies, however, on diverse legislation and authorities for implementation, and much of the legislation is outdated and does not reflect the current situation in the country or address the present needs. In Belize, as in most jurisdictions, a great deal of environmental, natural resources and land use legislation preceded the development of a coastal zone management program. And, as in most jurisdictions, coastal zone management has had to take into account these existing authorities. The purpose of this study is to review possibilities for better implementation of the CZM Act of 1998 through integration of sound coastal zone management policy into the planning, policy development and decision making of these authorities. This first section of this paper reviews the laws and regulations of Belize relevant to integrated coastal zone management and discusses some of the perceived strengths and weaknesses, overlaps and gaps in the legislation or its implementation in the context of coastal management. General recommendations for improvement are also included in this discussion. The second part of the paper summarizes recommendations for legislation, regulations and policy development to better achieve integrated coastal zone management. Finally, specific amendments are provided for the Coastal Zone Management (CZM) Act in Appendix I. Appendix II provides a draft proposed policy for Marine National Lands. Appendix III and IV include regulations for implementing several provisions of the CZM Act. Proposed modifications to the Fisheries Bill are included at Appendix V. Appendix VI includes the proposed Marine Dredging Management Policy. Appendix VII contains a review of the current law concerning citizen standing. Appendix VIII discusses a review and recommendations on marine environmental treaties. Appendix IX provides information on the consultation process used in developing this study.

Recent recommendations by national ocean policy studies for an ecosystem-based approach to management of marine activities and resources across sectors is a laudable, but extremely controversial and perhaps ultimately overwhelming goal if not approached incrementally. Problems of conflict and inconsistency which exist not only between sectors, but also within sectors, must be resolved. This article considers an approach to resolving conflicts within the sector of living marine resources management that could provide an incremental step toward more comprehensive ecosystem-based management. This article first provides a comparative analysis of the management regimes of the Magnuson-Stevens Fishery Conservation and Management Act, the Endangered Species Act and the Marine Mammal Protection Act - the primary statutes governing the management of living marine resources. The article then proposes a framework for a comprehensive management regime for living marine resources incorporating an ecosystem-based approach.

Marsh creation is currently receiving wide attention in the United States as an important tool for mitigating the impacts of development in coastal wetlands. The perception that there is no net loss in valuable coastal wetlands when development is mitigated by the creation of man-made marshes can have a substantial impact on the permitting and decision-making processes. The effective result may be the trading of natural salt marshes for man-made marshes.

Although coastal zone management certainly incorporates the adjacent seas, during the first decades of the Coastal Zone Management Act of 1972 (CZMA) states directed most policy development and management efforts to the landward side of the coastal zone where the most immediate conflicts and needs arose. At the federal level, even extension of a 200-mile Exclusive Economic Zone (EEZ) in 1983 led to little or no change in ocean policy or ocean management. The seas were undoubtedly becoming more intensely used for both living and non-living resource development, but the United States dealt with these issues primarily through legal regimes addressing single sectors, such as offshore oil and gas development or fisheries management. Today ocean uses are intensifying, raising user conflicts and stressing ocean resources and ocean systems more than humanity was considered capable of doing a century ago. Tragedies like the BP oil spill demonstrate the widespread effects of a single ocean use across all sectors of ocean and coastal activities and on the ecosystems upon which these sectors rely. Management of today’s oceans requires rational development of ocean policies, priorities, and governance structures. On July 19th, 2010, President Obama established the first United States national ocean policy, creating federal framework for implementing ocean policy and planning. For states that have taken significant steps toward planning and management of ocean waters within their boundaries, coastal and marine spatial plans potentially provide new opportunities for assuring that development and activities in the federal offshore will adequately considers state policies and priorities. For other states, like Florida, that have not developed comprehensive coastal and marine policy and planning, national ocean policy development may mean weak participation in the regional planning process, loss of state prerogative concerning major coastal planning issues and a fundamental failure in the governance of the states in regard to their coasts and waters. This article looks at the historical development of state ocean policy development, including the motivations of coastal states to take steps to develop comprehensive state ocean policy. Next the article addresses why “now” is the critical time for state ocean policy development. Finally, the article addresses the guiding principles for Florida’s ocean policy development.