What do fishery council members and executive directors talk about when the public isn’t listening?
At a meeting of the federal Council Coordination Committee held last month in Hawai`i, at the Mauna Lani Bay Resort, it was possible to get a glimpse into the discussions that generally have few, if any, members of the public in attendance. The committee, established in a provision of the Magnuson-Stevens Act, is made up of the executive director, the chairman and one vice chairman from each of the eight regional fishery management councils. Also in attendance were dozens of staff from the national and regional offices of the National Marine Fisheries Service as well as from the fishery management councils and several interstate fisheries commissions. Altogether, the federal government paid for probably 60 or 70 people to attend the gathering at one of Hawai`i’s premier resorts.
From the host council alone – this year, the Western Pacific Fishery Management Council (Wespac) – there were more than 20 representatives. In addition to the executive director (Kitty Simonds), chairman (Manny Duenas), and one vice chairman were more than half a dozen council staff, at least five other council members, several council consultants, members of the council’s Scientific and Statistical Committee, and a former council chairman.
According to a press release issued by Wespac, the CCC is convened annually to allow the NMFS officials and others to exchange information with the regional fishery management councils.
While there are few reports available online from past CCC meetings, the agendas and presentations that are available convey the impression of serious discussion of such topics as catch limits, enforcement programs, marine spatial planning, and the like. Topics of discussion at the May meeting included both pending and passed legislation in Congress; current and projected federal budgets for the National Oceanic and Atmospheric Administration and its agencies, especially NMFS; and an update on litigation against the NMFS by both fishing groups and environmental organizations. But a large part of the May meeting seemed intended to give Wespac the chance to vent its complaints against the service, Congress, and assorted non-governmental organizations, all of which, according to Duenas, are allied in a conspiracy to thwart the council and its fishing communities.
With two evening receptions (one on April 30, at the Mauna Lani; the second on May 2, at Hulihe`e Palace) and amid the plush resort setting, some may be tempted to view the meeting as little more than a junket. One of the presenters at the meeting, Kevin Stokes of New Zealand, alluded to this, observing that the hotel was “a rather nice place to come for a few days, especially since I’m participating for only a few minutes.”
Simonds, Duenas, and other council members and council staff have made no secret of their desire to have green sea turtles removed from the federal list of threatened and endangered species. More generally, turtles have been a burr in the saddle of Wespac for the last 12 years, ever since a lawsuit over turtle interactions resulted in the closure of the Honolulu-based longline swordfish fishery for three years.
Leading off a panel discussion on protected species, Paul Dalzell, Wespac senior scientist, recapped the long history of Hawai`i litigation over turtles.
Dalzell spoke of the dramatic fluctuations in the incidental takes of turtles allowed by the agency over the last two decades. From a take limit of about 200 in 1991, the allowed take zoomed to nearly 1,000 in 1998 – and then came the lawsuits. In the wake of the litigation, allowable take levels were cut back dramatically. The 1998 biological opinion, on which take levels are based, “essentially said, about 500 loggerheads, 250 leatherbacks,” Dalzell said. “It was a fairly qualitative opinion, but it had some quantitative underpinnings… Within three years, the jeopardy bar had been lowered by an order of magnitude adjustment. There was no real explanation as to why the jeopardy bar had been set so much lower…. It continues to this day to confound me.”
At the same time that the jeopardy bar, as Dalzell put it, was lowered, turtle populations, especially that of loggerhead turtles, were “springing back,” he said. Sam Rauch, acting administrator of the NMFS, responded by noting that in the 1990s, the “presumption was that the … arguments were supportable – which is not what the judge found. He found that they were arbitrary. … So the assumption that you had a valid 1998 biological opinion … was just flat-out wrong. It was wrong. It was unsupportable, and we had to do something different because the judge invalidated it.
“There needs to be a reflection of that in the argument you’re making,” Rauch continued. “More fundamentally, it shows – and we have seen this across the country – in the 1990s, nobody was paying attention to what we were doing on turtles…. Across the country, we were allowing thousands and thousands of turtle takes, and you’re not adding that up. Our rationales didn’t withstand judicial scrutiny, and we had to take a more sophisticated approach, accounting for all turtle takes…. What we could get away with in the 1990s, we can’t get away with today.”
Dalzell was unbowed. He acknowledged that the turtle biological opinions were getting better, “but the service needs to do more work on developing an absolute index of turtle size…. Then we can really assess the impacts of the fishery on turtles. I’ve now come to believe that all the fishery impacts don’t amount to a hill of beans in terms of impacts to turtles. Turtles are most vulnerable in their aggregating, nesting grounds.”
And although the changes in the Hawai`i longline fishery were effected through litigation, Dalzell would have the fishery be regarded as a case study in responsible fishing. “I never get the sense that the true achievement with what happened out here, with this fishery, has been celebrated as strongly as it should be. We went from an almost hopeless situation, thinking we would never find a magic bullet, to reducing [turtle takes] by one order of magnitude…. The service should make more reference to the iconic status of this fishery, with its reduction in takes of turtles and seabirds.”
Council chair Duenas (who was also chair of the CCC) seconded Dalzell’s comments, noting that, for the environmental community, the Marine Mammal Protection Act and the Endangered Species Act were “always a silver bullet.”
He went on to laud the fishery management councils for their transparency. “If anyone is transparent, it’s the council. We’re so transparent we should get a pass through the TSA machines. The councils are the only ones transparent in this whole issue of dealing with the ESA and MMPA,” he said.
Dalzell’s comments drew only a few critical remarks from the audience. Stokes, the fisheries management specialist from New Zealand who had been invited to speak on the same panel as Dalzell, said he was “concerned there’s still too much focus on the agency’s interaction with the councils, and not involving a wider public in the process.” Another panelist, Keith Rizzardi, a lawyer who once worked with the Department of Justice and who now chairs the federal Marine Fisheries Advisory Committee, suggested there needed to be “greater stakeholder engagement, greater engagement with the councils.”
A Duenas Dynasty?
Duenas did not shy away from using his prerogative as meeting chair to vent at length against the NMFS and others who, in his words, keep “little brown men” such as himself from exercising their cultural traditions, including eating turtle.
“Everyone else in the Pacific takes green sea turtles,” he said, “but we [in the Marianas] are penalized because we’re Americans. But we still go to Palau and Yap, so we can eat turtles….
“The council has saved over 100,000 turtles in Papua New Guinea, in Baja [California[. But these aren’t being pulled into the equation. They’re not part of anything… [There are] 10,000 turtles nesting in Japan, up 1,000 percent from 10 years ago. You’re not recognizing the fact that our fishing community is doing something right.”
A couple of hours later, Duenas was again on a rant, this time at the NMFS alone. “I’m sick and tired of this agency promoting science that is inaccurate,” he screamed during a discussion of stock assessments. “Don’t get high and mighty with me,” he warned, going on to denounce the agency and its scientists for another 10 minutes.
Duenas’ third consecutive term on Wespac expires in June. By law, he cannot be reappointed. The governor of Guam, Eddie Calvo, has submitted to the Secretary of Commerce the names of three individuals to replace him – all well qualified, Calvo said in his letter, but one more qualified than the others: Michael P. Duenas, Manny’s son. Duenas senior is president of the Guam Fisherman’s Cooperative Association. Duenas junior is its general manager. (The secretary is to announce council appointments by the end of June.)
In addition to his discussion on endangered species interactions, Dalzell gave a presentation titled “Marginalization of fisheries through competing acts/authorities.”
“Councils will always have to address consistency with other applicable laws and issues,” Dalzell said, “but the burden is growing.” The upshot was to “marginalize the council’s role in fisheries management, with more feet under the management table and more council staff time working on issues,” he continued. This last point, he argued, “was the more insidious aspect – increasing the amount of staff time working on issues.”
Designated monuments and sanctuaries have put off-limits to fishing 15 percent of the Exclusive Economic Zone within the Western Pacific council’s jurisdiction, he said. “Fifteen percent doesn’t sound like much, but this is 15 percent of coastal habitat, shallow waters. In terms of non-pelagic stuff, it’s very significant,” Dalzell said.
“The Antiquities Act throttled any fisheries in the Northwestern Hawaiian Islands…. The [bottomfish] fishery died. The lobster fishery died in 1999. And there have been no tangible benefits to fisheries by closing two-thirds of the island chain to fishing.”
What’s more, he said, “the elimination of fishing hasn’t stopped the decline of monk seals” in the “Papa and Mama monument” – which, Dalzell said, is what council staff calls the Papahanaumokuakea Marine National Monument that includes nearly the entire northwestern Hawaiian archipelago.
A petition to list several dozen different coral species as endangered was nothing more than “a Trojan horse for carbon emissions,” he said, “yet it could affect fishermen fishing on coral reefs.
The Endangered Species Act and its Section 7 requirement for federal agencies to consult on actions affecting endangered species were again denounced by Dalzell. A proposal to expand critical habitat for monk seals “could include most of the coastal regions of the Main Hawaiian Islands, including Penguin Banks,” an important fishing area, while “other potential ocean uses – cables, wind farms – these infringe on, or at least takes time away from council business, to deal with these things,” he said.
As for the Migratory Bird Treaty Act, “we are the only fishery for which an MBTA permit has been developed,” he noted. “We looked into the MBTA permitting process, which includes permits for taxidermy but not for fisheries. Now we have one for fisheries. What will happen to fisheries in other states?”
On and on went Dalzell’s list of perceived insults to Western Pacific fisheries: development of a take reduction plan for false killer whales, establishment of the Marianas Trench National Marine Monument, expansion of the Fagatele Bay and Humpback Whale sanctuaries. The latter was ridiculed as “a mission in search of a purpose” by Dalzell. “Already protected by the Marine Mammal Protection Act and the Endangered Species Act,” he said, “there was no rationale about establishing a sanctuary for humpback whales other than the federal dollars this may bring into the state of Hawai`i. The North Pacific humpback population has rebounded spectacularly at an average growth of 7 percent per year due to its not being hunted, not because areas of Hawai`i’s coastal waters were designated as sanctuary. The National Marine Sanctuaries Program, flush from its non-success with the humpbacks, now proposes to expand the remit of this initiative to take in more species, namely green sea turtles and monk seals, and designate new sanctuary boundaries.”
The NMFS was practically useless in defending fisheries against these onslaughts, Dalzell suggested. It “repeatedly fails to reject ESA listing petitions” that might be weak, it “will happily use unverified anecdotal information and agency discretion in management decisions,” it refuses to delist recovered species, it won’t let councils particulate fully in ESA Section 7 consultations, it is too cautious in its protected-species decisions, and it has marginalized the Magnuson-Stevens Act through the use of protected species statutes, he said.
“I came to the council 16 years ago,” Dalzell concluded. “We have only lost fisheries since then. Precious corals? No precious corals are harvested apart from black corals, though there are still beds here in Hawai`i. The Northwestern Hawaiian Islands bottomfish and lobster fisheries are gone because of the monument. The swordfish fishery was closed for three years and is still not recovered back to pre-1999 levels. The longline fishing grounds in the Pacific Remote Island Areas are lost. Shark finning, which represented 20 percent of the income for crews, has been banned.”
The discussion inspired another rant by Duenas. “I do believe in conspiracy theory,” he said. The object of the conspirators were fishermen, particularly Pacific Islanders, and the chief fomenters were “an environmental group in New Mexico that lost its beaches a million years ago” (referring, apparently to the Center for Biological Diversity, which has sued the NMFS over endangered species issues). “They’re doing the same thing the Nazis did in World War II,” he said.
No one in the room registered an objection to Duenas’ remarks or to his prolonged and repeated harangues against NMFS. Instead, at the close of the meeting, he was given a round of applause for his duties as chairman.
In preparation for the CCC meeting, Wespac executive director Simonds had asked NMFS staff to prepare a briefing on two executive orders signed by President Obama that had a bearing, she felt, on council activities – EO 13563 and EO 13575. The briefing was scheduled late in the second day, shortly before meeting participants were to board buses that would carry them to the Hulihe`e Palace in Kona for an evening of food, drink, and music.
Alan Riesenhoover, NMFS deputy assistant administrator, was tasked with making the presentation. The discussion of EO 13563, which was to improve regulation and regulatory review, went quickly, with Riesenhoover noting that “there are not a lot of fisheries regulations that are stale. They don’t hang around that long.”
When he launched into a review of EO 13575, however – “establishment of the White House rural council” – Simonds interjected, “That’s the wrong EO.”
“The EO we’re interested in is the one issued last month – Obama’s charge to all departments about communities and jobs and those kinds of things,” she said.
“Our interest in this has to do with reducing, avoiding redundancy in federal regulations. What is going on now in our part of the world is this review of the Humpback Whale Sanctuary. We’re not going to debate whether humpbacks are recovered – we do think they are – but this review is asking all of us to respond to a request to expand that sanctuary around every island in Hawai`i and to include other species. This has been a one-species sanctuary, and some now want to take an ecosystem approach to the sanctuary, and want to have management authority for these new species. I’m talking about monk seals, the turtles that are recovered. So we already have Fish and Wildlife and NMFS and the state of Hawai`i, who have authority to manage these species that these groupies want to include in the sanctuary – so how does Obama’s executive order affect this. That’s what I want to ask you, Sam” – she pointed to Rauch – “because I’m thinking of using this in some letters I want to send.”
Rauch did not immediately reply.
“Hey, are you here, Sam?” Simonds said. “You’re not going to have any drinks tonight unless you answer my question.”
Rauch said he had not consulted with the sanctuary program on that. “I encourage you to consult with them on that process,” he said.
“We have participated in that process,” Simonds replied. “We were one of two [sanctuary advisory] committee members who voted against it. You haven’t answered my question as to how you all will look at this third agency having management authority. Hello?”
Rauch responded by noting that if Simonds wanted a response, “next time you might want to give us the right executive order.”
That didn’t quiet Simonds, who continued to badger Rauch for the next few minutes. When he remained silent, Simonds concluded by saying, “Okay, you can have two drinks.”
The next day, Wespac staffer Charles Kaaiai gave a presentation on the EO 13602 – “Strong Cities, Strong Communities” – which was the one Simonds meant to ask for. The EO, Kaaiai said, establishes a council “with at least 25 agencies to improve the way federal government supports local communities and augment community planning.” He went on to note the work that Wespac had done to develop Pacific Island communities and then concluded with an apparent pitch to have NMFS renew a grant program for community demonstration projects, dormant for the last five years.
Near the close of the third day, the CCC took action to approve recommendations that had been made during the course of the meeting. Language was not made available to the members of the public in attendance, but, according to the Wespac press release, these actions included:
- Establishing a working group involving the CCC, the NMFS, and the Marine Fisheries Advisory Council to address improving public confidence and trust in the science used in federal decision-making;
- Asking the service to enhance actions to identify nations that do not prevent illegal, unregulated, and unreported fishing and to work with the U.S. fishing industry to develop underutilized fisheries.
- Asking the NMFS to fund basic data collection programs, given current stock assessments are inadequate to cope with fishery management needs.
A Closed Session
The CCC meeting was duly noticed in the Federal Register of April 2. According to the notice, it was to begin at 1:30 p.m. on Tuesday, May 1. However, the agenda given to meeting participants noted that from 8 a.m. to noon that day a “council only” session would be held.
By law, the CCC consists only of council members and executive directors. A council-only meeting, presumably excluding NMFS personnel, still meets the definition of the CCC, which cannot hold closed meetings except under very limited circumstances set forth in the Magnuson-Stevens Act. According to the MSA, to properly close a meeting to the public, the CCC must “provide notice by any means that will result in wide publicity in the major fishing ports of the region.” Furthermore, the agenda may not be changed (for example, the start time altered) within 14 days of the scheduled date of the meeting or without public notice, unless the change is to address an “emergency action.”
Environment Hawai`i requested an explanation from the National Oceanic and Atmospheric Administration’s Office of the General Counsel for the “council only” session. None had been received by press time. A response to a Freedom of Information Act request regarding the cost of the event was also pending.
The NMFS Office of Sustainable Fisheries website indicates that the CCC meets twice a year. The first meeting is generally held in January at NMFS headquarters in the Washington, D.C., area. The second meeting is generally in May and is hosted by the councils on a rotating basis. From 1977 to 2003, before it was enshrined in the Magnuson-Stevens Act, the committee was known as the Council Chairmen’s meeting or the Council Chairs and Executive Directors’ meeting. Past meetings in Hawai`i have been in Kailua-Kona village (1978 and 1992), Hilo (1985), Maui (1998), and Lihu`e (2004).
— Patricia Tummons
Volume 22, Number 11 June 2012