The Hawai‘i shallow-set longline fishery, which reportedly provides 50 percent of the domestic swordfish catch and generates about $3 million in revenue, could soon close for the third time since 2004 because of its interactions with federally protected sea turtles. As of late March, the fishery had taken 31 endangered North Pacific logger- head turtles. (“Take” under the Endangered Species Act means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”)
While the fishery’s annual take limit since November 2012 has been 34 loggerhead turtles, a 2-1 decision by the 9th U.S. Circuit Court of Appeals late last December found that the biological opinion (BiOp) underpinning that limit was “arbitrary and capricious,” and, therefore, violated the Endangered Species Act (ESA).
Since the National Marine Fisheries Service (NMFS), the defendant in the case, did not file a rehearing petition by March 14 — the extended deadline requested by the agency — the court issued a mandate effectuating its December judgment on March 22.
Earthjustice attorney Paul Achitoff, representing plaintiffs Turtle Island Restoration Network and Center for Biological Diversity, suggested that the ruling requires NMFS to close the shallow-set fishery in light of the high level of takes so far this year.
“I’m not really sure what they think the options are. If the court says … the biological opinion violates the ESA, I think it should be apparent [the cap is] what it used to be before they raised it unless and until they do another analysis,” he said. Given that the fishery’s pre-2012 BiOp cap for loggerheads was 17, “they shouldn’t be fishing,” he said.
Achitoff added that his clients were looking into filing for an injunction.
Contrary to Achitoff’s position, NMFS Pacific Islands Regional Office administrator Michael Tosatto stated in an email that the appeals court decision did not vacate the biological opinion for loggerheads. “Instead, the decision reverses the District Court’s grant of summary judgment on behalf of the agency because the administrative record did not adequately explain the discrepancy between the loggerhead’s projected decline under a climate model and the agency’s no jeopardy determination.” He added that the March 22 Circuit Court mandate returned the case to the District Court for further proceedings and that his agency and the Department of Justice are evaluating their options with respect to those proceedings.
“The best scientific information continues to show that the North Pacific loggerhead sea turtle population is experiencing strong population growth and we are prepared to address the deficiencies identified by the majority’s decision,” he wrote.
Whatever this year’s loggerhead cap is ultimately determined to be, the recent high levels of take have spurred the Western Pacific Fishery Management Council, which advises NMFS, to reverse course on its recommendation last year that the caps for endangered loggerhead and leatherback sea turtles be eliminated.
Those caps, along with a suite of other management measures (i.e., employing circle hooks and mackerel-type bait), were imposed in 2004 as conditions of reopening the fishery, which had been closed after conservation groups successfully sued NMFS for failing to protect the turtles. After those measures were imposed, takes of leatherbacks and loggerheads plummeted by about 90 percent. Given that the average number of takes over the years had, for the most part, fallen short of the caps, council staffers last year began lobbying for their removal. (See our November 2017 issue for more information on this.)
Shortly after the council voted at its meeting last October in American Samoa to seek the elimination of the turtle hard caps, Achitoff threatened further litigation if the council continued on its path and if NMFS subsequently adopted implementing regulations. A couple of months later, the 9th U.S. Circuit Court of Appeals issued its ruling that found the service’s 2012 determination that the fishery would not jeopardize the endangered North Pacific loggerhead turtle population was arbitrary and capricious.
The fishery then proceeded to come dangerously close to hitting the annual loggerhead cap of 34 takes (a number that may now be invalid), belying the council’s October finding that historical interaction rates suggested the fishery was unlikely to ever hit its caps for the two species. Between 2005 and 2017, the average number of annual observed interactions with loggerheads was 10.8, according to council staff.
In the first month of this year alone, however, the fishery had interacted with 27 loggerheads. By early March, that number had grown to 31. And this came after a year in which the fishery interacted with more loggerheads — 21 — than it had since the caps were established in 2004.
The reason for the spike is still being studied, although local fisheries scientists have noted that it seems to coincide with an increase in nesting sites in Japan. “The turtles we interacted with [are part of] the 2008-2014 cohort, which is the offspring from high nesting years,” the Pacific Island Fisheries Science Center’s (PIFSC) T. Todd Jones told the council.
“We don’t know the cause of the spike. If it is a spike in the population, it won’t be a one-time event,” added PIFSC director Mike Seki.
Given all that, the council recommended at its meeting last month that a new manage- ment framework for the fishery be added to its Pelagic Fisheries Ecosystem Plan. And rather than proposing to eliminate the turtle hard caps, the council suggested the framework could include them, as well as temporary, in-season closures if and when the fishery reaches a certain proportion of the loggerhead or leatherback limits. (The shallow-set fishery season runs from October through spring or early summer, according to council staff.) The framework might also include measures to monitor takes in real time, manage “interaction hotspots,” and establish a fleet communication program to facilitate real-time management.
NMFS posts the fishery’s interactions with turtles as they happen on its website, but fishers would have to check it regularly to determine how close they were to hitting the cap.
“With this spike, we saw these numbers rise quickly. … The numbers are not being updated in a real-time basis. It really took phone calls letting the shallow setters know the numbers are this high,” council staffer Asuka Ishizaki said, adding that some vessels then decided to return to port to prevent the cap from being reached. “They responded quickly and as a result of that the fishery is still open in March today,” she said.
“One of the things the recent interactions highlighted was the lack of information feedback to the fleet. … Not all of the vessels talk to each other in the fishery. The challenge right now, we can inform the people we know and they can inform the people they know,” she continued.
Council member Mike Goto, who manages Honolulu fish auction operator United Fishing Agency, said the establishment of a network within the shallow-set fishery, through which vessels might report where they are in real time and if they’re encoun- tering turtles, “is in flux due to these are independent operators. Things like fishing grounds are still proprietary in their minds.”
At last month’s meeting of the council’s Scientific and Statistical Committee, which is to advise the council, Russell Ito, a fishery biologist with PIFSC responsible for
analyzing the fleet’s logbooks, warned that improving real-time communication among the fleet may actually backfire and lead to a “tragedy of the commons.”
“You better be careful for what you ask,” he said, suggesting that the behavior that led to the spike in turtle takes might have become more widespread if vessels flocked to where the interactions occurred believing they could catch more fish there.
Before the full council meeting, the SSC recommended that the industry be allowed to develop its own ways of avoiding the hard caps on turtle interactions. Committee members noted that in a number of fisheries on the mainland, fishers who are subject to quotas for bycatch (although not for catch of endangered species) have been policing themselves.
So in addition to recommending the development of a real-time, spatial management framework for the shallow-set fishery, the council also directed its staff to work with the industry to prepare recommendations on a cooperative program that would give the industry the discretion to “manage fleet-wide sea turtle interactions based on hard caps identified by the council and NMFS and may include industry-implemented transferable interaction quotas or other innovative and efficient methods (e.g., risk pools).”
A risk pool is a group of fishers in a given fishery who have pooled their individual quotas for a bycatch species in need of conservation. In the California Groundfish Collective, for example, pooling quotas allows fishers to continue fishing even if they exceed their individual allocations, “so long as they operated in accordance with the agreed upon terms of the risk pool. California Groundfish Collective members collect and share information about where, when and what type of fish are caught using an application called eCatch, an electronic logbook and online mapping system developed by the [Nature] Conservancy to meet the need for real-time data collection,” according to a website for The Nature Conservancy, which supports the collective’s work.
With regard to the hard caps, Ishizaki said perhaps they could be applied in a way that targets “anomalous vessels” that are causing a spike in takes without penalizing the whole fleet, which currently consists of 18 longline vessels. If a single vessel interacts with four or five turtles in a single trip, “that’s when a management measure kicks in for that vessel, which could be told to sit out for the year,” she suggested.
Hawai‘i Longline Association representative and former council chair Sean Martin testified in support of that idea, or something similar. He did, however, caution against relying on industry participants to work together to police themselves, as would be the case in a risk pool. “Herding cats and herding fishermen are very similar,” he said, adding that the SSC’s recommendation that the industry take the reins on minimizing turtle takes would be difficult to implement.
Council executive director Kitty Simonds, however, seemed to think the fishery permittees could be forced to cooperate.
“They’d have to be part of the program or [we] take away their permits,” she said. Achitoff withheld comment on the council’s proposals to manage turtle bycatch, but reiterated his concerns about the fishery in an email. The U.S. Circuit Court decision required NMFS to immediately reinitiate consultation on the fishery’s impacts, “which in turn requires the fishery to shut down until consultation is complete, particularly since the fishery has already hooked many more loggerheads in 2018 (31) than it would have been allowed to hook under the previous Biological Opinion (17),” he wrote.
— Teresa Dawson