In the end, the longliners were worried for nothing. In fact, things may get a little easier for them.
On January 30, the National Marine Fisheries Service issued its new biological opinion (BiOp) on the effects eliminating the effort limit on Hawai`i’s shallow-set longline fleet would have on populations of endangered leatherback and loggerhead sea turtles.
Its conclusion: lifting the limit is not likely to jeopardize any of the five federally listed species that interact with the fishery, including endangered loggerhead and leatherback sea turtles.
The BiOp grew out of a lawsuit filed in December 2009 by the Center for Biological Diversity, the Turtle Island Restoration Network and KAHEA: the Hawaiian-Environmental Alliance over the NMFS’s adoption of a council proposal — known as Amendment 18 — to lift the effort limit on the Hawai`i-based shallow-set longline fleet.
The amendment also nearly tripled the number of allowable interactions with loggerheads, a change that flew in the face of the impending uplisting of loggerhead sea turtles from threatened to endangered, the groups argued.
To avoid lengthy litigation, the NMFS agreed to suspend the implementation of those portions of Amendment 18 and its associated biological opinion that related to the two turtle species while it prepared a new BiOp.
In the new BiOp, the NMFS determined that the Hawai`i swordfish fishery will likely interact with 34 North Pacific loggerheads and 26 leatherbacks; only 7 loggerheads and 6 leatherbacks would be killed. Those numbers are only slightly lower than those in the 2008 BiOp.
Although the NMFS did not factor in any benefits maintaining domestic swordfish production might have, it did calculate how many turtles might be saved by unfettering the Hawai`i fleet. If the United States increased its swordfish effort to 5,500 hooks (the historical peak of swordfishing effort in Hawai`i), about 117 loggerheads and 89 leatherbacks would be saved from take by foreign fleets, the NMFS found.
The NMFS recommended that loggerhead and leatherback takes by the Hawai`i fleet be calculated on a two-year basis, rather than an annual basis. It also chose not to require 100 percent observer coverage and recommended that there be no hard caps on the fishery’s interactions.
“This is at odds with Amendment 18, which has different values for the incidental take for loggerheads and leatherbacks and hard cap fishery closures in the event of hitting those take limits,” states a council report submitted to the SSC in February. The report suggested that the council might want to evaluate whether it wants to continue using hard caps and requiring 100 percent observer coverage.
“Observer coverage is ruinously expensive,” council economist Paul Dalzell told the SSC. “We’ve lived quite comfortably with 20 percent observer coverage in the deep-set fleet.”
Fisheries scientist Chris Boggs, who helps NMFS determine when to a fishery is expected to hit a regulatory limit, expressed his preference for 100 percent coverage.
“You can do real-time tracking. Without it, you’d have to wait until next year, next quarter, whatever [to find out if a limit was exceeded]. Without 100 percent coverage, you can’t have a hard cap,” he said.
SSC member Richard Deriso said he couldn’t see why Boggs couldn’t just extrapolate the take level based on a lower level of coverage.
To Boggs, this was out of the question. “If you count on it, I’ll have to apologize for not providing it,” he said.
At its meeting in Guam last month, the council asked the NMFS science center to provide the SSC with an analysis of an appropriate observer coverage level that would lead to reliable turtle interaction estimates.
A ‘Surprise Ending’
To 2011 Bigeye Season
The Christmas gift Congress tucked into last year’s Consolidated and Further Continuing Appropriations Act netted Hawai`i-based longliners $6 million more than they would have gotten if they had been forced to stop fishing bigeye tuna when they were supposed to under an international agreement.
On November 18, the NMFS announced that Hawai`i bigeye landings would soon reach the 3,763 metric ton annual limit set by the Western and Central Pacific Fisheries Commission to control overfishing. In anticipation of hitting that limit, the agency issued a temporary ruling to close the U.S. longline bigeye fishery in the Western Pacific on November 27.
Unbeknownst to the NMFS, President Obama had signed the Act on November 18, which included language allowing U.S. longliners to attribute their bigeye catch to the U.S. Territories, regardless of where they fished, provided they had permission from those governments. As a result, the NMFS withdrew its earlier ruling on November 28.
“The surprise turn of events made things interesting for fishers, fish dealers, and fishery managers,” states a report by the NMFS Pacific Islands Fisheries Science Center.
Hawai`i-based longliners caught about 608 metric tons of bigeye, valued at $6 million, after November 27. IIn the entire WCPFC area, total catch for this period was 4,868 metric tons.
At its June 2010 meeting, the council recommended amending its Pelagics Fishery Ecosystem Plan (FEP) to allow the territories to assign up to 750 mt per year of their annual longline bigeye catch limits to U.S. vessels with domestic charter arrangements or similar mechanisms. It also proposed establishing criteria for U.S. vessels operating under charter arrangements to “be further integrated with the Territory’s domestic fleet by supporting fisheries development within the Territory.”
But before the council could approve such amendments, Congress passed Consolidated and Further Continuing Appropriations Act, providing American Samoa, Guam, and CNMI the authority to allocate catch limits set by the WCPFC through arrangements with permitted U.S. vessels.
In effect, Wespac staff wrote in its recommendations for the council’s meeting last month, the legislation accomplished much of the proposed FEP amendment was to establish, “but in a much simpler manner.”
The legislation expires at the end of the year, or earlier if the council transmits, and the Secretary of Commerce approves, an amendment to the Pelagics FEP.
Council staff recommended last month that “the Council consider directing staff to develop options for further consideration or to maintain [the amendment] as recommended.”
In the end, the council directed its staff to use language in the 2012 appropriations (similar to 2011’s), any catch attribution arrangements, and any measures that might come out of next WCPFC meeting (held late last month), to develop additional options related to bigeye tuna catch limits and responsible fisheries development in the territories for consideration at the council’s June meeting.
In addition, the council recommended that the United States ensure that the territories’ catch limits are not reduced and negotiate for a 5,000 metric ton bigeye tuna allocation. The limit takes into account that the Hawai`i longline fishery “primarily fishes in a region that has the lowest fishing mortality on bigeye and that U.S. longline catches at that level will not impact bigeye stock condition,” according to a summary of council actions. The council also recommended that increases in bigeye catch by the Chinese longline fishery not be tolerated.
“[T]his fleet has increased its bigeye catch from about 2,000 mt in 2000 to 11,565 in 2009. Longline catches in 2010 are likely to exceed 12,000 mt,” the council stated.
Council Director Grumbles
Over Migratory Bird Permit
If it had been up to Wespac executive director Kitty Simonds, the National Marine Fisheries Service would have simply let environmental activists sue it over the incidental take of migratory birds by the Hawai`i shallow-set longline fleet.
But counsel with the National Oceanic and Atmospheric Administration preferred a precautionary approach and advised the NMFS to apply to the U.S. Fish and Wildlife Service for a special use permit for the take of birds (primarily Laysan and black-footed albatross) by the fleet, which it did last August.
It was the first time such a permit has been sought for fisheries and was prompted by a lawsuit regarding the council’s Amendment 18, which abolished the effort limit on the Hawai`i swordfish fishery.
Since 2004, the fishery has implemented various measures required under NMFS rules to avoid seabird interactions (i.e., blue-dyed bait, side-setting). It has taken an annual average of 55 Laysan and 20 black-footed albatross between 2004 and 2010, but these levels are “not thought to pose a risk of population-level impacts or change in conservation for either species,” according to a January 10 Federal Register notice.
Since the fishery as it currently operates is not likely to harm the bird populations, the FWS’s preferred alternative identified in the draft environmental assessment (Alternative 2) is to issue the NMFS the permit as requested. Under the permit, fishing regulations would not change, but the NMFS would take steps to study take levels and patterns, possibly identify further mitigation measures, and develop plans for new research to “identify such methods and/or develop proposals to offset or compensate for the seabird take that cannot be practicably avoided,” the EA states.
In her comments on the EA, Simonds states that while the council also prefers Alternative 2, it has some concerns about the way the NMFS has interpreted the Migratory Bird Treaty Act.
“Based on legal advice received by the Council it is our understanding that the MBTA would need to have specific language inserted by Congress to apply beyond the three mile limit, and therefore may be inapplicable to the Hawai`i longline fishery. Further, if this fishery has to be permitted, then surely other fisheries with similar or larger seabird takes would need to be permitted, including the various Alaska fisheries which kill thousands of seabirds annually, including documented mortalities of [endangered short-tailed albatross]. This may indeed apply to any other federally permitted activity which presents a hazard to migratory birds such as air traffic or installation of alternative energy sources such as wind farms. The issuance of a single permit for the Hawai`i longline fishery appears in our view to meet the criterion for an arbitrary and capricious application of the MBTA. Thus while the Council is broadly in favor of a process that reduces litigation vulnerability for fisheries under its jurisdiction, it is concerned that this process may result in the Hawai`i longling fishery being embroiled in a welter of litigation brought by environmental groups concerning all federally permitted activities, including fisheries,” she wrote.
Finally, she asked that the FWS specifically address the issue in the final EA and final rule for the permit.
At the council’s Scientific and Statistical Committee meeting in February, Simonds expressed her confusion over why a permit was necessary when NMFS has been managing the fishery effectively.
“Does this have something to do with [the Department of the] Interior taking over NOAA? Why couldn’t this have been worked out between the two services?” she asked Brett Wiedoff of the NMFS Pacific Islands Regional Office.
To this, Wiedoff said the permit has nothing do to with the proposed merger. “It does stem a bit from the Amendment 18 lawsuit [regarding sea turtle interactions]. NOAA counsel decided to do this application,” he said.
“So the [MBTA] goes beyond three miles. … It was a change in a legal opinion,” Simonds said.
“That’s correct,” Wiedoff said.
To this, Simonds said she saw the permit as a duplication of effort.
“We don’t agree to this giving in,” she added. “They should have just let the lawsuit happen. We’re used to lawsuits.”
She then reiterated her suggestion that other fisheries that take birds be required to get a permit.
“It seems to me, if we have to suffer, everybody else has to suffer,” Simonds said.
To date, the NMFS has not applied for special use permits for other fisheries. At its meeting last month in Guam, the council asked the FWS to allow it and the NMFS to be involved in preparing responses to comments on the draft EA.
— Teresa Dawson
Volume 22, Number 10 April 2012