Federal-state conflict over ocean hard minerals governance: Coastal state responses to federal prospecting regulations

Ocean & Shoreline Management 16 (1991) 61-78

Federal-State Conflict Over Ocean Hard Minerals Governance: Coastal State Responses to Federal Prospecting Regulations D a v i d W. Fischer California State University, Long Beach, California 90840, USA (Received 2 December 1990; accepted 30 January 1991)

ABSTRACT This paper describes the conflict surrounding the US Minerals Management Service's regulatory thrust to govern ocean mining in the US Exclusive Economic Zone. It explains the differences of view over the source of authority to pursue ocean mining and describes how the Service attempted to reduce conflict through joint federal-state task forces. It details the content of the first stage of its regulatory regime, that of prospecting, and summarizes the state responses to it. The paper concludes that while some conflict is inevitable each level of government should work together to ensure a balanced system of governance.

INTRODUCTION Ocean mining in federal waters has never occurred. As the Office of Technology Assessment recently reported, 'The commercial potential of marine minerals from the US E E Z [Exclusive Economic Zone] is uncertain because development, when it occurs (or if it occurs in the case of some minerals), is likely to be in the distant future. '1 In addition, the Coastal States Organization recognized that 'commercial recovery of hard minerals is still in its infancy'. 2 Thus, while increasing knowledge of ocean hard minerals continues, these prospects are still perceived to be in the future. Nevertheless, the federal government through its Minerals Management Service (MMS) initiated a regulatory thrust designed to govern the prospecting, leasing and recovery of ocean hard minerals. This 61 Ocean & Shoreline Management 0951-8312/91/$03.50 © 1991 Elsevier Science Publishers Ltd, England. Printed in Northern Ireland

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effort was prompted by President Reagan's Proclamation of a US Exclusive Economic Zone ( E E Z ) , which included jurisdiction over all marine resources within 200 nautical miles, a new area of immense potential wealth. 3 This proclamation added nearly 4 × 109 acres to the US, which greatly increased the nation's present size of 2-3 x 109 acres. The US E E Z extended US control through the federal government to all minerals on and under the seabed. Even before President Reagan's proclamation, the US Minerals Management Service aggressively pursued the development of offshore oil and gas; however, the impetus of this new area with potential hard minerals wealth gave rise to a new program opportunity. Mineral deposits ranging from sand and gravel for construction materials to more exotic forms such as manganese and cobalt crusts are known to exist in the E E Z . 4 The breadth and depth of these deposits are not readily determined without major exploration expenditures which few mining companies are willing to undertake without security of tenure for any deposits discovered. Nevertheless, federal interest in ocean hard minerals persists because of the high import dependence of the US for several minerals critical to the US economy. The US imports minerals valued at approximately $4 × 109, including some where the the US is almost totally dependent on foreign sources (manganese, platinum, cobalt, chromium, titanium). 5 In all, the US is a net importer of over 60 strategic and critical minerals--many of which are known to exist in the US E E Z . Thus, it is not surprising that in a time of chronic budget and trade deficits, the federal government is looking to its newly acquired E E Z minerals to offset such with royalty revenues, and possibly export earnings. In addition, increasing environmental and land use constraints on land further curtail extension of existing mines, particularly those near major urban areas. Therefore, the US Minerals Management Service (MMS) established a separate program in July 1983 to pursue ocean hard minerals development: the Office of Strategic and International Minerals (OSIM). It is this office that set out to create a regulatory regime for ocean hard minerals, and it is this office that found itself enmeshed in a conflict between federal and state assertions over control of the E E Z .

T H E Q U E S T I O N OF A U T H O R I T Y The authority for creating this new federal office dedicated to ocean hard minerals stems from two sources. The Outer Continental Shelf

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Lands Act (OCSLA) of 1953, amended in 1978 to include environmental factors, contains one paragraph devoted solely to hard minerals: 6 The Secretary [of Interior] is authorized to grant to the qualified persons offering the highest cash bonuses on a basis of competitive bidding leases of any mineral other than oil, gas, and sulphur in any area of the outer Continental Shelf not then under lease for such mineral upon such royalty, rental, and other terms and conditions as the Secretary may prescribe at the time of offering the area for lease. In addition, authority was taken from President Reagan's 1984 State of the Union Message which also contained one paragraph: 7 The Department of Interior will encourage careful, selective exploration and production of our vital (mineral) resources in an Exclusive Economic Zone within the 200 mile limit off our coasts---but with strict adherence to environmental laws and with fuller State and public participation. Armed with the above authority, the MMS moved to establish two federal-state task forces with the State of Hawaii and the States of Oregon and California. s The purposes of these two task forces were to study the resource, engineering, economic and environmental aspects associated with a possible leasing and development of the ocean hard minerals to be found off the coasts of the three states. At the same time, the new Office published an advance notice of proposed rulemaking. 9 The proposed regulations were to cover prospecting, leasing and operating phases for ocean hard minerals development. Subsequent public comments revealed several coastal states objecting to the entire rulemaking process on the basis that the OCSLA was inadequate authority for the task of ocean hard minerals development. Nevertheless, the MMS formed new federal-state task forces with certain coastal states and continued with its rulemaking. In a seemingly unrelated series of moves, the US Office of Management and Budget, reflecting President Reagan's desire to reduce federal expenditures, attempted to remove funding from the coastal management program within the National Oceanic and Atmospheric Agency (NOAA). This attempt was made each fiscal year during the Reagan Administration, and each time the Congress restored part of the funds. In addition, the US Department of Interior introduced an accelerated oil and gas leasing program to enhance US energy supplies and revenues. Coastal states became concerned over possible impacts from such a program. Therefore, the coastal states which depended on N O A A funds reacted to reduced funding and accelerated oil and gas

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leasing in various ways. One thrust by these states has been an attempt to tap into federal revenues earned through offshore oil and gas development. Various revenue-sharing bills were introduced into Congress in 1982 and 1983. While one of these bills passed the House, it was rebuffed in the Senate, and the coastal states did not reintroduce revenue sharing directly. Rather they did so indirectly as part of a different legislative tack to govern ocean hard minerals. To counter the perceived aggressiveness of the MMS over its ocean hard minerals program and to further their own aims, the Coastal States Organization, several environmental groups and certain mining representatives opposed to the OCSLA bidding and leasing requirements found a Congressman to sponsor their combined draft bill. On August 15, 1986, Mike Lowry (D, WA) introduced the 'National Seabed Hard Minerals Act' and proceeded to hold hearings on it.~° The Bill called for minerals revenues to be diverted to the states and a state veto over federal ocean hard minerals activities, among other things. With this recent activity ripening in the face of no prospects for early ocean hard minerals development, there is now time to consider governance for their eventual development. Coastal states have great concern over ocean hard minerals because of past adverse experiences over oil and gas development with MMS, the need to locate port operations and minerals processing plants in their coastal zones, the need for adequate funding to plan for and guide development activities as well as mitigate adverse impacts, and the desire to shape and integrate ocean hard minerals development with other ocean activities. Since this paper focuses on the interaction over governance of ocean hard minerals by federal and state governments, only the federal-state issue will be discussed here. Coastal states base their authority to participate in development activities with the federal government on the assertion that they have an inherent interest in the E E Z . A recent report from the Coastal States Organization notes: ~ Important sectors of coastal State economies depend directly on the E E Z and its resources . . . . Coastal S t a t e s . . . oversee the ports, harbors, and shore space that are essential to ocean development . . . . Through the bonds of common air basins, the actions of waves and currents on the shoreline, and the effects of rivers and run-off on ocean water quality, the land and sea are joined together in an inseparable relationship. Thus, an equitable governance scheme for the E E Z must acknowledge the quality of interests--national and State--that exist in the US E E Z .

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Nevertheless, prior to the E E Z proclamation, several Supreme Court opinions found for the federal government rather than for state government assertions, lz It was only through the Submerged Lands Act of 1953 that Congress and President Eisenhower gave authority to the coastal states to have jurisdiction over marine resources within three miles, t3 In an even later 1969 case, a ruling in favor of the federal government was again made in which the international character of ocean waters required the federal government to retain sole jurisdiction over marine resources within three miles.~4 However, coastal states now argue that the E E Z proclamation shifted ocean development from an international zone to a purely domestic zone: ~t The resources of the US E E Z are not to be managed for their international c o m m o n usefulness but rather for the usefulness of the United States. Thus, domestic m a n a g e m e n t of US E E Z resources has become a question for consideration by the separate governmental units, i.e. the federal government and the coastal States• From this precept the Coastal States Organization goes on to assert: • . . hence State agencies have been delegated m a n a g e m e n t authority over those [state marine] resources. This authority, however; must be carried out in a manner that acknowledges and protects co-existing national interests in these same waters. Similarly, federal agencies that are delegated authority to manage resources in the E E Z , must, we believe, take account of state and local interests that, in many cases, co-exist with national interests beyond the three mile limit. Thus, with a widened concept of jointly held duties, the Coastal States Organization, a national lobbying group on behalf of the coastal states, asserts that its members have rights to shared decision-making with the federal government as full partners. In order to pursue this partnership role it joined with other concerned groups and proposed the 'National Seabed Hard Minerals Act' noted earlier. As expected, "this Bill was opposed by the US Minerals Management Service (MMS) on the basis of the existing O C S L A which grants exclusive jurisdiction to the US D e p a r t m e n t of the Interior; and the Department's solicitor's opinion that asserted the O C S L A applies as well to the E E Z adjacent to the 50 states• In addition, the MMS noted its vast ocean oil and gas experience and Interior's jurisdiction over hard minerals on land. Finally, the MMS described its current regulatory activities in attempting to create an ocean hard minerals governance system. The MMS also found fault with the proposed Bill. x5

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Thus, the federal and state governments appear to be in conflict over the question of whose authority is to be in force over ocean hard minerals, among other marine resources. The federal government asserts sole jurisdiction through its MMS based on a 1953 law containing one paragraph explicitly providing for cash bonus bidding for offshore leases and the widest possible Secretarial discretion for setting lease terms and conditions. On the other hand, the coastal states assert joint jurisdiction based on the concept of shared duties and responsibilities in the E E Z , and are backing a proposed law to provide for such.

T H E OSIM I N I T I A T I V E When the US Department of Interior's Office of the Solicitor wrote an opinion that the OCSLA applied to the E E Z as well as the OCS, the stage was set for Interior to act on President Reagan's proclamation. ~6 An early move was to create a visible presence via a separate organization, the Office of Strategic and International Minerals (OSIM), established in 1983. This new Office, mindful of previous adverse experiences with states over oil and gas activities, began its effort by calling for a joint federal-state task force with the State of Hawaii to investigate the manganese crust in the E E Z surrounding that state prior to any leasing activity. ~'7 This task force was co-chaired by OSIM and Hawaii's Department of Planning and Economic Development, and consisted of representatives from federal and state agencies with permitting responsibilities for the operations that would result from a lease sale.18 The task force was to oversee the preparation of an Environmental Impact Statement (EIS) for a possible lease sale, coordinate and conduct supporting research, and serve as a forum for communicating on ocean mining issues. While in part this task force concept was a response to an earlier failure of Interior of attempting to hold a lease sale unilaterally off the coast of Oregon, it seemed clear that OSIM had a genuine interest in forging a federal-state partnership at the decision-making level rather than disregarding 'management and decision-making issues', as asserted by some. ~9 Task forces have been requested by several of the coastal state govemors, and this attests to their success as a vehicle for facilitating a federal-state partnership. Each task force is organized with equal co-chairs, one from OSIM and one designated by the state governor. The responsibilities of the task forces are similar, namely to conduct mineral and environmental feasibility studies on possible hard mineral

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tracts offshore. Additionally, the task forces serve as focal points for communicating and reconciling points of view. While OSIM funded the early cases in their entirety, some state contributions are now required. To date, six task forces have been formed via OSIM: Hawaii, Oregon-California, North Carolina, Georgia, the Gulf States (Alabama, Mississippi, Louisiana, Texas), and Alaska. Other states which have expressed interest and wish to have joint task forces formed with OSIM include Virginia and New York-New Jersey. Thus, contention that Interior 'has not attempted to use the state and federal CZM [Coastal Zone Management] process to resolve its ocean mining problems '19 seems untrue, since the task force concept itself is a reflection of this process. However, it is one thing to form task forces to study ocean mining issues, and quite another thing to have the regulatory authority available to govern it. Therefore, OSIM also pursued a regulatory thrust based on the OCSLA, and designed to give it the power to implement a regime to govern ocean mining. In all, several public notices were developed involving the rules for prospecting, the first phase of any mining activity: • • • •

an advance notice of proposed rulemaking for pre-lease prospecting regulations on 7 December 1984; a call for information requesting interested parties to delineate areas of prospecting interest on 15 January 1985; a notice of proposed pre-lease prospecting regulations on 26 March 1987; the announcement of final pre-lease prospecting regulations on 5 July 1988. 20

Once the original notice was published and while waiting for early public comment to be available, an inter-agency federal working group was created that included representatives from OSIM, its parent agency the Minerals Management Service, the Geological Survey, the Bureau of Mines, and an ocean mining representative from the National Oceanic and Atmospheric Agency, among others. This working group completed a draft of the proposed prospecting regulations and submitted them for internal review by the Secretary's Office in Interior. Once approved at Secretarial level, the draft regulations were sent to the President's Office of Management and Budget. After approval there, the draft regulations were released in the Federal Register. All interested publics had ninety days to comment on the draft prospecting regulations; and three public meetings were held in Oregon, North

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Carolina and Louisiana. In addition, representatives went to public meetings in Florida and Hawaii to seek public comment. The proposed regulations provided for MMS approval of a prospecting permit prior to any prospecting activity. The application for the permit was to include the applicant's name and nationality, a description and a map of the area covered, the proposed time period (not to exceed two years), a description of the prospecting activities including those expected to have a potential for environmental impact, and an indication of what data the applicant would consider as proprietary. In addition, a prospecting plan was to accompany the application; which included the minerals of interest, the prospecting activities, the types of equipment used, maps showing location of drill holes and other sampling, schedule of activities, anticipated environmental consequences and a plan for mitigating them, an environmental monitoring plan, known historic properties in the area, a description of potential conflicts with other ocean users, and the exact depth of drill holes. These rules went on to note that any prospecting could not 'unreasonably' interfere with other minerals leases, harm aquatic life, cause pollution, disturb historic properties, create hazardous conditions, or harm other uses of the area. In addition, provision was to be made for MMS inspection, and the prospector had to submit status reports every three months. The MMS listed certain prospecting activities not expected to cause significant environmental impact, such as magnetic measurements, bottom imaging with sonar, and limited sampling of minerals and water. It also listed activities expected to have significant impacts, including sampling of over 100 tons, use of explosives, trenching, suctioning, and drilling over 12 holes. Information that the MMS obtained under this permit would be public except for geologic and geophysical data agreed to earlier that was to be held confidential as proprietary information. Coastal states would be notified in advance of issuing a prospecting permit in order to allow them to review the applications and advise the MMS on it. All information would be shared with the coastal states if they agreed to hold proprietary data confidential. Sanctions for suspension of the permit were included, in the event that a threat of harm to aquatic life or the 'marine, coastal, or human environment', or any other property was determined by the MMS. Such suspensions were to take effect immediately upon notification. Once these proposed rules were published in the Federal Register, they were open for public comment. In all, responses were received from one US Congressman (Chair of the House oversight committee on ocean concerns), 11 federal agencies, 11 coastal states, 5 local govern-

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ments, 5 mining/oil companies, 4 scientific consulting firms, 4 law firms, 3 industry associations, 14 universities, 3 non-profit organizations (lobbyists), and 4 foreign nations. A wide variety of opinions were offered by the reviewers. Many criticized the regulations as inappropriate under the OCSLA rather than finding direct fault with their content. Others saw no difficulty with the regulations being under the OCSLA. Some questioned the need for any new regulations, while others wanted the rulemaking stopped. Still others supported the rulemaking process. Only one reviewer criticized the total content of the draft regulations as poor, while others expressed the view that they were well thought out. 2~ Since this paper focuses on the coastal states, only their comments will be noted. Coastal state responses

Of the 11 coastal states that responded to the proposed prospecting regulations, 7 participated in OSIM joint task forces. Four were not on such task forces, but two are interested in task forces, and another two are not. Table 1 shows which coastal states are in each category. From Table 1, there are 23 coastal states in all with only two refusing to participate in the federal Coastal Zone Management Act (CZMA). All of the 21 participating states received federal funding to develop coastal zone management plans for state waters out to three miles offshore and the adjacent shorelands. These plans recognized certain uses, and created planning mechanisms for reconciling conflict. In addition, the states have a review authority over federal agency initiatives that occur within state coastal zone jurisdictions. 22 The question now is the extent of such CZM authority beyond state waters, particularly since ocean mining in federal waters could generate impacts on uses in state waters, as well as requiring onshore processing sites. From Table 1, one can gauge the extent of this potential conflict by comparing the coastal states that are participating on OSIM task forces with those that are not. Of the total number of states, 44% (n = 10) are on joint federal-state ocean minerals task forces, 22% (n = 5) are interested in joining such task forces, and 34% (n = 8) have no interest in task forces whether stated explicitly or not. Thus, it appears that the majority of coastal states favor working with the US Minerals Management Service (MMS) regardless of past adverse experiences over its ocean oil and gas program, z3 This partnership effort with Interior's MMS is the direct opposite of that pursued by the Coastal States Organization, which wants all ocean mining to be placed under another

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federal agency, the National Oceanic and Atmospheric Agency ( N O A A ) . 24

Again, one can assess further the extent of potential conflict by comparing coastal state responses to OSIM's prospecting regulations. Here, four were favorable to the proposed regulations, while six questioned the authority of OSIM to issue such regulations under the OCSLA. One state (Hawaii) was favorable to the regulatory content, even though it questioned the authority of the existing law. All states favorable to the regulations also worked with OSIM on joint task forces; however, some of those states that were unfavorable also had task force experience. Perhaps the neutrality or lack of interest by the majority of states spoke to the lack of perceived conflict. If most coastal states showed little interest in this proposed rulemaking, the Coastal States Organization did not: it asserted that the attempt to promulgate rules was unlawful and urged an immediate suspension of the rulemaking processY One major influence in state responses to OSIM task forces and regulatory initiatives is how the state organizes itself for coastal management. If the lead agency is an environmental agency greater antagonism toward Interior seems to exist, whereas if the lead agency is a planning or natural resource agency greater favoritism exists. Of the states favoring prospecting regulations, all responses originated from planning and resource agencies, whereas opposing states' responses came from environmental or coastal agencies. The latter had been affected greatly by the Reagan Administration's attempt to eliminate funding for their state regulatory activities, z6 Issues raised by the states

This section lists and discusses briefly the issues raised by the 11 states that responded to the proposed prospecting regulations. As seen from Table 1, those favorable to the regulatory initiative included Georgia, Hawaii, North Carolina and Oregon. 27 Georgia's comments centered on ensuring that the E E Z was a multiple use area, although it felt ocean mining should be allowed only if no significant adverse impacts occurred on other uses. It also was concerned that states have maximum input into decision-making since states have the 'burden' of onshore infrastructure. To ensure mining company attention to adverse impacts performance bonds, environmental monitoring and immediate cancellation of mining permits were recommended. Thus, Georgia favored ocean mining only if key

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precautionary measures were in place and no other uses were displaced or unduly impacted upon. Hawaii, on the other hand, emphasized that the state's role is paramount in any activity that may affect it. It enumerated a list of principles to govern ocean mining to include: a partnership arrangement with the federal government, the right to protect Hawaiian users of the E E Z , the right to prevent degradation of environmental quality from E E Z activities, an 'appropriate interface' between federal and state waters, the right to manage its coastal zone on the basis of its policies, a recognition of future generation's interests, and the right to a share of the revenues to offset its risks. Based on these principles, Hawaii wanted them discussed prior to final promulgation of the regulations. In particular, it felt that the C Z M A and ocean mining should be reviewed for its expected impacts on other uses, a performance bond imposed, and the state held harmless for damages under the regulations. Thus, while Hawaii did not object to the regulations per se, it did raise fundamental principles that affected the premises of the regulations. An additional state follow-up noted that the regulations appeared adequate to protect the ocean environment and existing uses. North Carolina noted that it had been consistent in its support of ocean mining, as long as all federal and state environmental laws were obeyed and state and public involvement existed in all phases of the program. However, it did note that Interior should weigh the benefits of its approach to that of the new law proposed by the Coastal States Organization. In sum, North Carolina noted that the proposed rules were both 'rational and reasonable', and would allow for prospecting, while Interior and Congress investigated 'appropriate measures to overcome the deficiencies of the OCSLA'. Thus, this state supported both prospecting and changing the source of authority for the regulations. Oregon, the final supportive state, expressed a 'fundamental concern' for a 'true partnership of joint state-federal management'. It noted that the proposed rules failed to provide for this kind of a partnership since the state role was merely advisory. Nevertheless, the state offered detailed comments to improve the regulations, and noted its own effort to support ocean mining in state waters. It wanted a continued joint effort in the management of ocean mining. States that questioned the authority of the MMS to issue regulations under the OCSLA included Alaska, California, Connecticut, Florida, and South Carolina. Alaska favored a new law to govern ocean mining on the basis that the OCSLA was written primarily for oil and gas, gave only 'secondary consideration to state interests', and did not provide for

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revenue sharing with coastal states. Alaska also noted that if the MMS elected not to develop new legislation, it should seek state review of its proposed rules. It then offered detailed comments. California sent two separate responses: one from its Attorney General, and another from its environmental agency. The former doubted the legality of the OCSLA, but favored adoption of prospecting rules. However, concern was expressed that the proposed rules may not comply with existing environmental law since Interior was making a unilateral judgment that environmental impacts were not significant. Additionally, the lack of a consistency review as required under the federal CZMA, and the problem of 'secret commercial exploration' of areas without good resource knowledge a priori to estimate the degree of harm, was noted. California's environmental agency opposed the promulgation of prospecting rules altogether, because of lack of authority under the OCSLA, lack of revenue-sharing provisions, lack of adequate environmental and state review of potential impacts, and lack of an understanding of the proposed regime. Connecticut adamantly opposed the regulations on the basis of lack of authority, lack of environmental protection, lack of economic incentive, and lack of public participation. In addition, the OCSLA did not allow for adequate state review, did not provide adequate standards for balanced decision-making, and did not allow for revenue sharing. The state argued for new legislation. Florida also supported new legislation, since it too doubted the authority of the MMS to place ocean mining under the OCSLA. The state also chastised the MMS for not responding to its previous queries. It noted that Florida does not object to minerals activities as long as such can be 'demonstrated not to adversely affect the marine and coastal environments and the economies they support'. While the state supported the idea of case-by-case decision-making, it was not convinced that harm would not occur without adequate opportunity to review and consult on expected impacts. South Carolina also preferred new legislation, and was 'disturbed' at the 'silence' of the proposed rules concerning state review under the federal CZMA. Nevertheless, the state offered detailed comments on the regulations. Two other states made 'no comment'. Mississippi preferred not to comment until it reviewed the other documents and portions of the proposed regulatory regime. New York simply intended to review the rules and submit comments if necessary. This review of state comments to the proposed prospecting rules shows a major concern over the authority of the MMS to issue ocean

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mining regulations. While some states still were favorable to the rules themselves, nearly all questioned the source of authority for such rules. The federal response

In the interim between the call for public comment and the promulgation of the final rules, the MMS Director unilaterally dissolved OSIM and transferred it to his office. The author attended the briefing on this move, and while couched in 'efficiency' terms, the move resulted in the loss of all experienced staff from OSIM, and set back the ocean mining program by at least one year. This move meant that all federal co-chairs of joint task forces and other marine geologists and economists were lost to the program. The newly appointed OSIM director had no background in ocean mining and was searching for staff from other sources.

This unfortunate move also cost the loss of a momentum to create federal-state task forces for MMS's failing oil and gas program, and it created an opportunity for the National Oceanic and Atmospheric Agency (NOAA) to attempt to wrest ocean mining from Interior. N O A A immediately backed the passage of a new law to give it sole authority for ocean mining. 2s It also was supported by some coastal states, notably Connecticut, Florida and California. The lack of political support for MMS by the Congressional delegations from Massachusetts, Florida and California led to another moratorium on MMS oil and gas exploration in those states. The success of the joint task forces for ocean mining only exacerbated this problem, since MMS seemed unable to transfer this administrative innovation from the hard minerals sector to its larger oil and gas operations, z9 Nevertheless, during this loss of momentum and reorganization of OSIM, the final prospecting regulations were published. 3° The MMS rejected all state overtures to its lack of authority to issue such regulations by simply quoting the one paragraph from the OCSLA. 31 It refused to stop the promulgation of its proposed regulatory regime on the basis that it had sole authority to issue such rules under the OCSLA; it had issued leases for salt and phosphates under this law; it already had joint planning arrangements with ten states; and it had sufficient data to predict environmental impacts from past studies carried out for its oil and gas program. 32 The MMS reaffirmed its prerogative to decide unilaterally on matters of ocean minerals, and did not increase any time available for state review of prospecting applications. However, it noted that each state can enter into cooperative agreements with it in order to establish

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mutually acceptable conditions for prospecting; and it agreed to request the name of the expected port of operation to aid in state planning. The MMS also reiterated that it encouraged states to participate fully in its ocean mining program, and that it would continue to consult and coordinate ocean mining activities with affected coastal states. Finally, the MMS noted that the C Z M A already allows for possible state review of prospecting permits and such did not warrant repetition in the regulations. The MMS emphasized the retention of flexibility to manage ocean mining rather than to establish fixed procedures for permit suspension.

CONCLUSIONS The separation of the US federal government into three co-equal branches, and the federal system of 50 equal states, guarantees conflict in decision-making. One might expect that the US E E Z , being solely under federal jurisdiction, would generate a situation of lesser conflict; however, the 23 coastal states see the new area as a potential source of mineral wealth and impacts on their existing ocean and coastal uses. Therefore, they have moved to assume as much authority as possible in decisions affecting its use. While OSIM's initiative of joint federal-state task forces provided a vehicle to discuss state demands, it did not halt state moves toward greater equality in decision-making. A key question to this apparent contradiction is the power attached to such a task force. As the Hawaiian co-chairman of the task force noted, 'ultimately, the Secretary of the Interior holds the power. He gives final approval for any leasing decision in Federal waters (where most, if not all, of the crusts lie). This makes the Manganese Crust Task Force an advisory and not a decision-making body'. ~s As this article goes on to say, however, even an advisory group wields some power through the garnering of respect by outside inftuentials, the preparation of key decision-making documents such as the environmental impact statement, and the choice of researchers and coordinators to undertake the work involved. Should the task force recommendations be rejected, the state officials would have further recourse by preparing the Governor's comments on the project in question under the OCSLA, notifying the state's Congressional delegation of their position, passing a state legislative declaration, making a negative consistency determination under the C Z M A , having new legislation introduced in Congress and, as a last recourse, relying on litigation, is Thus, existing federal laws and more informal means are

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available to states for influencing overall federal ocean mining policy, as well as specific project determinations within the OSIM federal-state task forces. What OSIM task force experience to date shows is a growing interest in offshore hard minerals and mining by coastal states. In the areas of research, coastal programs, legal/administrative frameworks and mineral management program formulation, the coastal states are moving toward a position of being capable of assuming their desired roles in federal-state decision-making. However, it is equally clear that little experience with offshore hard mineral development exists. Only two states (Alaska, Maryland) have active hard mineral development now, and only two states (Florida, New York) have had extensive experience in offshore dredging/mining of sand and gravel. Thus, while coastal states have ambitious plans to assert their role in hard mineral resource development decision-making, their information base, legal/administrative framework and experience do not coincide with their thrust. While state experience with offshore mining is extremely limited, it must be said that such experience is the only one available in the US. Therefore, one can expect a sharing of experience around a common interest for orderly ocean hard mineral development. Nevertheless, the mere availability of a task force is insufficient to influence the outcome of federal decision-making. States must actively move to share in the technical management of ocean mining, if they wish to be in the chain of command and responsibility with delegation of authority for specific tasks. An aggressive assertion of a role is an empty gesture, unless the states are ready to assume within their demanded roles the responsibilities of shared decision-making. As a recent 'White Paper' prepared by the Western Legislative Conference notes, 'states and territories need to analyze their own programs and prepare action strategies for managing ocean mineral development within their coastal zones, including the territorial sea'. 33 State participation can only be effective if the states develop the base for timely decision-making. Of course, offshore mining has never taken place in federal waters beyond the territorial sea. The federal government has only the jurisdiction, desire and financial resources to pursue offshore marine mining; not the experience in governing it there. The question now is how can the states bolster their position to be effective decision-makers in a shared arena with the federal government. The coastal states already share decision-making with federal agencies in the area of marine fisheries; and through the CZMA consistency clause, they share in decisions concerning pollution control, siting of facilities and certain other federal activities. Will conflict or

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cooperation dominate the search for adequate governance of ocean mining in the US E E Z ? As the need for ocean hard minerals grows, the coming decade will provide the answer.

NOTES A N D R E F E R E N C E S 1. Office of Technology Assessment, Marine Minerals: Exploring Our New Ocean Frontier, Executive Summary, Washington, DC, Government Printing Office, 1987, p. 13. 2. Coastal States Organization, Coastal States and the US Exclusive Economic Zone, Washington, DC, Coastal States Organization, 1987, p. 6. 3. Presidential Proclamation 5030, March 10, 1983. 4. Champ, M. A., Dillon, W. P. & Howell, D. G., Non-living EEZ resources: Minerals, Oil and Gas. Oceanus, 27(4), winter 1984/5, 28-34. 5. Bureau of Mines, Mineral Commodity Summaries, 1987, Washington, DC, Government Printing Office, 1987. 6. 43 USC 1337 (k). 7. President Reagan, State of the Union, January 25, 1984. 8. The authority for these two task forces was claimed under 43 USC 1337 (k). 9. 49 FR 47871. 10. HR 5464, 99 Cong, 2S, August 15, 1986. 11. Coastal States Organization, Coastal States and the US Exclusive Economic Zone, Washington, DC, Coastal States Organization, April 1987, pp. 1-26.

12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22.

332 US 19,339 US 699, 33 US 707. 43 USC 1301. 420 US 515. Committee on Merchant Marine and Fisheries, Hearings on National Seabed Hard Minerals Act (HR 5464), Serial No. 99-53, 99 Cong, 2S, Washington, DC, September 23, 1986, pp. 146-82. Office of the Solicitor, Memorandum MMS.ER.0057, US Department of the Interior, Washington, DC May 30, 1985. Authority for the joint task force is based on the Secretarial discretion in 43 USC 1337 (k). For a list of specific agencies see Wiltshire, J. C., Innovative Trends in Marine Management: Hawaii's Manganese Crust Work Group, Proceedings of Oceans, Marine Technology Society, September 1984, pp. 884-9. Archer, J. H. & Knecht, R. W., The US National Coastal Zone Management Program: Problems and Opportunities, Coastal Management, 15(2), 1987, 103-20. 49 FR 47871, 50 FR 2264, 52 FR 9758, 53 FR 25242. See letters and public hearing record available in the Office of Strategic and International Minerals, Reston, VA. 16 USC 1451.

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23. KaUman, R. E. & Wheeler, E. D., Coastal Crude in a Sea of Conflict, San Luis Obispo, Blake, 1984. 24. Substitute HR 1260, 100 Cong, 2S, February 1, 1988. 25. Letter to Reid T. Stone, Director of Office of Strategic and International Minerals from Richard F. Delaney, Chairman of Coastal States Organization, June 23, 1987. 26. See, for example, articles in the Nautilus Newsletter, Coastal Zone Management, 18(31), August 20, 1987; 19(1), January 10, 1988. 27. This section is based on the public testimony and letters from the official files of the Office of Strategic and International Minerals, Reston, VA. 28. Substitute HR 1260, 100 Cong, 2S, February 1, 1988. 29. The MMS director was forced to resign as a result of his decisions' political consequences. 30. 53 FR 25242. 31. 43 USC 1337 (k). 32. 53 FR 25247. 33. Bailey, R. J., Marine Minerals in the Exclusive Economic Zone, Western Legislative Conference Draft White Paper, Portland, OR, November, 1986, p. 2.