Swordfish Fishery Is Shut Down After Reaching Limit on Loggerhead Takes

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At 7:09 a.m. on March 20, the National Marine Fisheries Service closed the shallow-set longline fishery, commonly known as the swordfish fishery. The fishery’s take limit for loggerhead sea turtles had been reached, and the resulting closure, noticed in the March 23 Federal Register, came in the midst of efforts to institute an emergency rule allowing for the immediate closure of the fishery once take limits were reached.

The preferred ocean “highways” along which loggerhead turtles travel – isotherms between 17 and 20 degrees centigrade – are thinner than they were last year and have concentrated the animals into tighter clusters. As a result, more loggerhead turtles have been caught by the Hawai`i swordfish fleet in the first quarter of this year than in all of last year.

By mid-March, the Hawai`i shallow-set longline fleet had interactions, also called “takes,” with 15 threatened loggerhead sea turtles – just two shy of the annual limit of 17 set by the National Marine Fisheries Service under the consultation process required by the federal Endangered Species Act.

The Western Pacific Fishery Management Council, concerned that the next interaction the shallow-set longline fishery had might involve several turtles at once, decided on March 16 to seek ways to immediately close the fishery.

Although no turtle deaths had been recorded by federal observers, a February report by NMFS indicates that some of the animals caught may have been injured.

As of mid-March, the swordfish fleet had had no interactions with endangered leatherback turtles, which have a take limit of 16.

Under federal rules, “Once either of the limits” – for loggerheads or leatherbacks – “has been determined to have been reached in a given year, the shallow-set component of the Hawai`i-based longline fishery will – after giving permit holders at least 7 days advance notice – be closed for the remainder of the calendar year,” the report states.

If either of those limits is exceeded in a given year, the fishery would not only be closed, but NMFS would have to reinitiate consultation (required under Section 7 of the Endangered Species Act). This process, through which take limits are set, would require NMFS to prepare a new biological opinion on the shallow-set fleet’s impact on the population of loggerhead sea turtles.

At its March meeting, council staff and members were concerned that the loggerhead take limit would be reached and, during the seven-day notice period following the announcement of the fishery’s closure, be exceeded. Customarily, after the limit is reached, a closure notice is published in the Federal Register and fishing is prohibited seven days after the filing of the notice. Word of closures reaches boat captains via email, fax or post.

To avoid possibly having to reinitiate consultation, the council requested on March 16 that the Secretary of Commerce initiate, through an emergency rule, a process that would allow for the immediate closure of the Hawai`i shallow-set longline fishery once the caps on loggerhead or leatherback turtle takes are reached.

Marcia Hamilton, on the council staff, notes that the federal observers on the longline boats now have satellite phones, allowing for immediate fleetwide communication, since all swordfish vessels have to carry federal observers. Although the emergency rule was approved last month, days after NMFS closed the fishery, Hamilton says the rule is only good for one year and that the council will need to revisit this issue.

In 1999, ruling on a lawsuit filed by two turtle conservation groups that contended that the longline fishery was a threat to the recovery of endangered sea turtles, federal District Judge David Ezra issued an injunction closing most of the swordfish fishery. But in May 2004, the swordfish fishery reopened under new rules. Federal observers are now required to be present on all swordfishing boards; hard annual caps of 16 and 17 were set on leatherback and loggerhead takes, respectively; fishing effort was capped at 2,120 sets a year; and the use of circle hooks, thought to be less harmful to turtles, was required.

Environmentalists questioned the science behind the effectiveness of circle hooks and complained that the hooks had never been tested in the Pacific.

“Closures are the only proven technology that works to reduce sea turtle deaths from longlining, said Robert Ovetz, Ph.D., Save the Leatherback Campaign Coordinator with the Sea Turtle Restoration Project, in a recent press release. The Sea Turtle Restoration Project is one of the groups that filed the federal lawsuit.

Earthjustice attorney Paul Achitoff, who represents the two groups, said the same press release, “Ever since they reopened the swordfish longline fishery in April 2004, the Western Pacific Regional Fishery Management Council and NOAA Fisheries have been declaring they have figured out how to longline for swordfish without killing critically endangered leatherback and loggerhead sea turtles. Apparently, they were wrong. Let’s hope this time they have the wisdom to keep the fishery closed.”

* * *
Council, State Clash
Over Bottomfish Closures

“If anyone cares to feel like a horseshoe between an anvil and a hammer, become a bottomfisherman in Hawai`i.” That’s how bottomfisherman Gary Dill described his situation at the March meeting of the Western Pacific Fishery Management Council, where council and state representatives proposed conflicting measures to end overfishing of bottomfish stocks in Hawai`i.

At the meeting, representatives of the state, who favor area closures, clashed with council staff, which favored seasonal closures. In the end, the council adopted a plan calling for seasonal closures should the state adopt a parallel approach. Otherwise, the council decided it would have to close two of the most productive bottomfish banks used by Main Hawaiian Islands bottomfishermen in order to satisfy requirements of the federal law governing fishing in federal waters.

Precipitating the management decisions was the National Marine Fisheries Services’ finding last May that overfishing of Hawai`i’s bottomfish species was occurring. (Overfishing occurs when the number of fish killed by fishing exceeds the level that is estimated to be the fishery’s maximum sustainable yield, or MSY. It should not be confused with a determination that the stock is being overfished; that occurs when the level of a given stock is below what is needed to produce MSY.)

NMFS has determined that bottomfish make up a single stock across the entire archipelago, including the Northwestern Hawaiian Islands. Still, the major source of the overfishing problem is found in the Main Hawaiian Islands, NMFS says. (The bottomfish fishery is spread across three zones: the Main Hawaiian islands, and the nearer Mau and further Ho`omalu zones in the Northwestern Hawaiian Islands. Bottomfish is a multi-species stock that includes onaga, opakapaka, ehu, hapu`upu`u, lehe, kalekale, `ukikiki, and several other species.)

Under the Magnuson-Stevens Act, which governs fishing in federal waters, the council had one year from the time overfishing was found to occur in which to take action designed to end the practice.

At the council’s March meeting, fisheries scientist Bob Moffit presented data indicating that fishermen are catching fewer fish with the same amount of effort. The catch per unit effort (CPUE) for bottomfish in the main Hawaiian islands went from 600-800 pounds in 1948 to 200 pounds per trip in 2004, he said.

In the Northwestern Hawaiian Islands, the CPUE went from around 14,000 pounds per trip in 1948 to about 4,000 pounds per trip in 2004, he said.

Because the NWHI bottomfish was a “virgin” – that is, unfished – stock at the time commercial fishing began, a steep drop in CPUE was expected, Moffit said.

He added that the mean weight for opakapaka is about eight pounds in the Northwestern Hawaiian Islands and about four pounds in the Main Hawaiian islands, which indicates greater fishing pressure in the main islands. The onaga and hapu`upu`u show the same weight trend, he said.

Not only are the fish smaller in the main islands, there are fewer adults here than in the northwestern islands. The percentage of immature opakapaka is higher than it is in the northwestern islands, but not dangerously so, Moffit said. Onaga, on the other hand, has a very high percentage of immature individuals in the main islands – 70 to 80 percent – with a smaller percentage, 40 percent, in the northwest. Hapu`upu`u exhibits this same trend, he said.

To address the overfishing, the council prepared a draft supplemental environmental impact that identified eight alternatives, ranging from no action to a summer closure to closing federal waters in Penguin Bank, to the south and west of Moloka`i, and Middle Bank, northwest of Kaua`i. These banks are some of the most productive grounds fished by Main Hawaiian Islands bottomfishers.

At its March meeting, council members clearly preferred a seasonal closure. The state, on the other hand, argued that area closures would best protect bottomfish in the long term. Coincident with the council’s effort to improve the health of bottomfish stocks, the state Department of Land and Natural Resources’ Division of Aquatic Resources is in the process of completing a review of its 19 Bottomfish Restricted Fishing Areas, which were established in 1998 in response to a federal assessment that bottomfish stocks in the Main Hawaiian Islands were approaching an overfishing condition.

At the March meeting, the DAR’s Alton Miyasaka presented the state’s plans to amend its bottomfish reserve system to better protect stocks. In coordination with the council, DAR is proposing measures meant to reduce the number of bottomfish taken by around 15 percent, a level determined by federal fisheries scientists to be sufficient to end overfishing throughout the archipelago. (A new bottomfish stock assessment still under review, however, may force NMFS to increase that percentage somewhat, according to fisheries scientist Gerard DiNardo.)
Miyasaka explained that under the state’s proposal, the number of reserves will be reduced from 19 to 12. Although there will be fewer reserves, they will be larger and will contain better habitat than the old reserves, he said. Also, the reserves will have straight-line boundaries and be moved closer to shore to assist in enforcement, he said.

One of the benefits of area closures is that they allow for “genetic connectivity,” said Chris Kelley, a University of Hawai`i scientist who helped the state develop its new reserve system. Using multi-beam mapping technology, the state was able to identify sea-floor habitats that are known to be used by bottomfish, he said, likening the reserves, scattered throughout the Main Hawaiian Islands, to “stepping stones.”

Kelly pointed to the state’s prohibition on fishing around Kaho`olawe as an example of the effectiveness of area closures.

“The fish are migrating out. It’s almost a model for creating an enhancement reserve. It’s no accident that the Alealekai Channel and the north side of Kaho`olawe are some of the richest bottomfish areas,” he said.

Fisheries scientist Gerard DiNardo, however, questioned the effectiveness of the state’s plan, arguing that it will result in fishermen simply shifting their effort to other areas. At least with seasonal closures, he said, a reduction in fish mortality is ensured. “You can only fish so many days,” he said.

DAR administrator (and the state’s representative on the council) Dan Polhemus responded, “It’s been the state’s experience you get a shift [in effort] temporally” with seasonal closures.

Although the state’s plan alone could reduce fishing mortality by 15 percent, it won’t be approved for several months, certainly not by the deadline NMFS set for the council to take action to end overfishing.

So after a lengthy debate about seasonal versus area closures, council member Ed Ebisui made a motion to have the council adopt an annual bottomfish closure of all federal waters around the Main Hawaiian Islands from May 1 through August 31, provided that the state notify the council in writing by April 15, 2006, of its commitment to adopt parallel seasonal regulations for bottomfish within state waters (out to three miles). The seasonal closure, according to the supplemental EIS, will reduce mortality by 17 percent.

In an apparent attempt to force the state to adopt a seasonal closures, Ebisui’s motion also contained a threat, of sorts: Should the state not commit to a seasonal closure, the council would recommend closing Penguin and Middle banks. This would be expected to cut fishing mortality by 15.5 percent, but it would devastate O`ahu fishermen, 60 percent of whose catch is taken from Penguin Bank.

Polhemus quickly dispelled the possibility of the state scrapping its area closures for seasonal ones, saying that it would take nine months for the state to draw up its own seasonal closure regime. He added that the success of area closures has been proven for tropical bottomfisheries, yet, “nobody could produce a peer-reviewed study showing the success of seasonal closures.”

Furthermore, he said, the council’s own Scientific and Statistical Committee endorsed the state’s proposal for revising its closed areas and supported a seasonal closure as an interim measure only. He also pointed out that the state Office of Hawaiian Affairs had expressed its opposition to seasonal closures – a position OHA has since backed away from, according to Leimana DaMate of the Association of Hawaiian Civic Clubs.

Despite his arguments, the council approved Ebisui’s motion, with Polhemus and council member Rick Gaffney opposing it.

In mid-April, the state sent a letter to the council stating that it would not adopt seasonal closures.

* * *
NOAA Again Asks
Council for NWHI Advice

Some conservationists are calling it a second bite at the apple. And they are not happy.
Last year, in accordance with the National Marine Sanctuary designation process, the Western Pacific Fishery Management Council submitted to the National Oceanic and Atmospheric Administration its recommended fishery rules for the proposed Northwestern Hawaiian Islands National Marine Sanctuary.

In October, NOAA rejected the council’s proposed rules because they did not conform to the goals and objectives of the proposed sanctuary. The decision was considered a victory by many who believed the council’s vision catered too much to fishing interests and not enough to the area’s fragile ecosystem.

But in January, NOAA sought the council’s input on three scenarios that are expected to be included in NOAA’s draft environmental impact statement for the sanctuary, which is expected to be released for public comment in late spring or early summer. NOAA asked the council to develop proposed rules for these scenarios: one that would allow fishing indefinitely, one in which fishing would be allowed until 2025, and one that would call for fishing to cease after five more years.

In a January 18 letter to the council, NOAA suggested a possible regime that included 13 bottomfish permits with maximum landings set at 350,000 pounds and two pelagic permits with a cap of 180,000 pounds. (Bottomfish are deep-dwelling animals whose range is fairly restricted; pelagic fish have ranges that can extend across thousands of miles of open ocean.)
At the council’s March meeting, William Robinson, administrator of the National Marine Fisheries Service’s Pacific Islands Regional Office, explained that those recommendations were “nothing official” and were merely offered for guidance and discussion purposes. Council staffer Jarad Makaiau then presented council members with the staff’s new recommendations for initial action:

Under all three scenarios, Makaiau recommended that the council, among other things:

• Place a moratorium on the take of crustacean, coral, and reef species;
• Reissue relinquished or revoked permits;
• Establish two Mau zone permits for native Hawaiian use; and
• Remove minimum landing requirements.

If the NWHI sanctuary were to allow fishing for five years, Makaiau proposed that the council manage fishing under its current regulations (while adding the amendments proposed for all three scenarios).

If fishing were to be allowed until 2025 or indefinitely, Makaiau recommended there be a total of 14 bottomfishing permits with a landings cap of 381,500 pounds a year. In addition, staff proposed having three non-longline pelagic fishing permits – a new category of permit – with a total annual cap of 91,250 pounds. (At the moment, 17 bottomfishing permits exist, but only about half are active. Non-longline commercial, pelagic fishing – i.e., trolling – currently exists in the northwestern islands, but a federal permit is not required. Catch data for this fishery is collected by the state. According to council staff, the council did not have access to this confidential data when it made its original recommendations to NOAA in April 2005. Staff adds that its recommendations regarding non-longline pelagic fishing were based, in part, on the suggestions included in NOAA’s January 18 letter and on the state’s historic catch data, which had recently been provided.) The council staff also proposed establishing no-fishing areas around French Frigate Shoals, and in waters west of 177 degrees latitude, around Kure and Midway atolls.

Linda Paul, director of the Hawai`i Audubon Society, reminded the council that the guiding management principles in the executive order establishing the Coral Reef Ecosystem Reserve (which is the basis for the proposed sanctuary) are to “protect the Northwestern Hawaiian Islands in their natural character” and to manage them using the best available science and “a precautionary approach with resource protection favored when there is a lack of information regarding any activity.”

“[Council] staff repeats that science proves that bottomfishing does no harm. But science on this is just beginning,” she said, adding that the precautionary principle should be applied to bottomfishing in this case.

Paul said the Reserve Advisory Council, which she sits on, recommends closing the bottomfishery within five years and buying out current permit holders.

The Ocean Conservancy’s Kris Balliet testified that the council shouldn’t be given a second chance to propose fishing regulations under the Magnuson-Stevens Act and that the sanctuary should be governed by the National Marine Sanctuaries Act alone. (The Ocean Conservancy is very concerned right now about a Congressional bill that would require fishing regulations in all National Marine Sanctuaries to be consistent with the Magnuson-Stevens Act, an act that aims to optimize use of fish stocks, rather than preserve them in their natural state.)

Longline fisherman and former council chair Jim Cook testified that although the sanctuary was a “wonderful thing… what I object to are those who seem to think success hinges on throwing the beggars out of the temple.” He added that the NWHI bottomfishery is managed far better than those in places like Fiji or the Philippines, where fishermen use dynamite.

Bottomfisherman Gary Dill, who has a permit to fish in the Mau zone of the NWHI, supported continued bottomfishing, but thought the council was proposing too many permits.

“Thirteen or fourteen is too high considering the number of fish being landed. It [14 permits] won’t allow us to have the boom years you need to survive the bust years,” he said.

The state representative of Wespac also believed something more conservative was appropriate. State Division of Aquatic Resources administrator Dan Polhemus, sitting in for Department of Land and Natural Resources director Peter Young, suggested that Wespac allow only eight bottomfishing permits with a cap of 222,000 pounds, and not allow permits to be reissued. His motion failed, with at-large council member Rick Gaffney being the only other member to vote in favor of it.

Instead, the council gave its tentative approval its staff’s recommendation to have 14 bottomfishing permits (7 each in the Mau and Ho`omalu zones) with an annual cap of 381,500 pounds (85 percent of the maximum sustainable yield). The council also tentatively agreed to recommend closing indefinitely the crustacean, coral reef species, and coral fisheries; requiring commercial and recreational fishing to be subject to Magnuson-Stevens Act permits and logbook reporting; issuing recreational fishing permits on a case-by-case basis; adding three non-longline pelagic permits with a pelagic catch cap of 180,000 pounds; dropping the use-or-lose requirement for the permits; and allowing for the reissuing of revoked or relinquished permits. Polhemus and Gaffney opposed the measures.

On April 20, Wespac gave its final approval to these recommendations, with one significant change: These measures would be applied to fishing under all three of the scenarios NOAA had proposed.

According to NOAA’s January 18 letter, if the council incorporates these changes to its Fishery Management Plans by May 1, “NOAA may review those Magnuson-Stevens Act regulations as potential mechanisms to implement NOAA’s preferred alternative for the proposed sanctuary, rather than implementing the alternative via the National Marine Sanctuaries Act,” a Wespac press release states.

Also at the April meeting, Wespac approved the following initial recommendations, which will need to be given final approval at another Wespac meeting before they are submitted to NOAA:

• The length of non-longline pelagic fishing vessel length should be limited.
• NWHI fishermen being pushed out of fisheries there should be compensated.
• The weather buoy near Nihoa – a popular fish aggregating device – should be relocated outside the proposed sanctuary.
• Council staff will investigate discrepancies between catch reports by fishermen and the state’s logbook data on non-longline pelagic catches in the NWHI. (The proposed cap of 180,000 pounds is based on flawed data, according to fisherman Joseph Dettling. Dettling told Wespac that his 70-foot boat alone could exceed that amount in a single run.)
• All sanctuary-permitted vessels in the reserve should be required to report what they catch to Wespac; and
• Should NOAA close NWHI commercial fisheries, all other types of fishing, except for native Hawaiian traditional fishing, should be prohibited.

While council members Peter Young and Rick Gaffney and other members of the public expressed concerns about how this last recommendation would impact research-related fishing and sustenance fishing in the reserve, Makaiau explained that the measure was a response to complaints the council had been receiving about the limits being placed on fishermen, while “everybody else can go” to the sanctuary. (Sustenance fishing occurs when you eat what you catch while in the reserve.) Council member Ed Ebisui also didn’t think it was fair to allow sustenance fishing of lobster by researchers or recreational vessels, when the lobster fishery has been closed since 1999. Don Palawski of the U.S. Fish and Wildlife Service noted that sustenance fishing is limited in the Hawaiian Islands National Wildlife Refuge and is prohibited at Tern Island. Palawski suggested that the council might want to establish non-sustenance fishing zones.

— Teresa Dawson

Volume 16, Number 11 May 2006

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