New NMFS Rule Allows Increased Injury to Turtles by Hawai`i Swordfish Fleet

posted in: Fisheries, Marine, November 2012 | 0

The National Marine Fisheries Service has approved a new rule that significantly increases the potential number of loggerhead and leatherback sea turtles that can be harmed by the Hawai`i swordfish fleet in a given year.

On October 4, the Federal Register published notice of NMFS’ approval of the rule. When it takes effect on November 5 – absent a court-ordered stay – the swordfish fishery will be able to interact with, or “take,” up to 26 leatherbacks and 34 loggerheads a year before it is shut down. The new numbers represent an increase of 62 and 100 percent, respectively, over the previous incidental take limits of 16 leatherbacks and 17 loggerheads.

As the non-profit group Oceana noted in a press release following the Federal Register notice, “The timing for this approval is particularly paradoxical, as NMFS upgraded the status of the Pacific loggerhead sea turtle from ‘threatened’ to ‘endangered’ little more than a year ago, and designated almost 42,000 square miles of ocean waters off the coasts of California, Oregon, and Washington as critical habitat for leatherback sea turtles earlier this year.”

Catherine Kilduff of the Center for Biological Diversity, a group that had previously sued to protect the turtles from harm inflicted by longline interactions, made a similar point. The new rule, she told Environment Hawai`i, is “definitely dismaying, because since our prior court challenge, the loggerhead in the North Pacific has been upgraded” to endangered from threatened under the Endangered Species Act.

As of press time, no one with any of the groups that expressed opposition to the rules would say whether they would be suing NMFS to block implementation of the new rule. However, the Hawai`i Longline Association, which has been a strong supporter of lifting the turtle limits, indicated in its comments that a court challenge is practically a foregone conclusion. Jeffrey W. Leppo, an attorney representing the HLA, concluded his comment letter with the statement, “we hope and anticipate that NMFS will fully defend its final decision on the merits in the inevitable legal challenge that will be pursued by environmental advocacy groups.”

A Recycled Rule

Back in 2009, NMFS proposed raising the allowable take of loggerheads and leatherbacks in a nearly identical way, lifting the limit on loggerheads from 17 to 46 and on leatherbacks from 16 to 17. The Center for Biological Diversity, Turtle Island Restoration Network, and KAHEA: The Hawai`i-Environmental Alliance jointly sued the agency. In a settlement approved by Honolulu federal Judge David Ezra, NMFS set aside the proposed rule as it applied to the turtle limits (other aspects of the rule, including a lifting of curbs on the number of swordfish sets that could be made in a given year, were adopted). NMFS also agreed to prepare a new biological opinion within 135 days of its having made a final determination on the proposed uplisting of nine distinct population segments of loggerheads, from threatened to endangered.

The HLA challenged the settlement in the 9th U.S. Circuit Court of Appeals. In a decision published just last March, the appellate court rejected HLA’s arguments. By then, however, NMFS had issued a new biological opinion (BiOp), which had been blessed by the HLA even prior to its public release in late January. On June 11, NMFS opened a one-month period of public comment on the proposed rule based on the new BiOp. The final rule – unchanged in any meaningful way from the draft one – was published on October 4.

‘Fatally Flawed’ BiOp

Many of the comments harshly critical of the proposed rule focused on the supporting biological opinion. David Henkin, an attorney with Earthjustice (which represented the plaintiffs in the 2009 court challenge), described the opinion as “fatally flawed.”

For one thing, Henkin argues, the population models for leatherbacks and loggerheads used by NMFS produce “an overly optimistic view of the status of these species and the effects of NMFS’ proposed action.”

The climate-based population model NMFS relies upon minimizes the effect of human-caused mortality, he goes on to say. “By comparing the effects of only one fishery to a measure of large-scale environmental variability, NMFS has essentially guaranteed a no-jeopardy determination,” he writes. “As NMFS admits, ‘[f]urther research is needed on how climatic and anthropogenic forces together impact the trends of turtle populations,’” he continues. “Therefore, it is too early to allow climate models to overshadow effects from fishing mortality, especially in the context of an [Endangered Species Act] jeopardy analysis.”

Oceana also had harsh words for the climate-based population model. “The model does not include other anthropogenic mortalities (e.g., bycatch in other fisheries), but rather just the direct effects of the proposed action,” writes Ben Enticknap, Pacific project manager for the organization. “Even so,” he continues, “with this model NMFS finds that [the] North Pacific loggerhead sea turtle population is at ‘a heightened risk of extinction’ and the population will decrease significantly over the next 25 years.” More than 99 percent of the scenarios in this population model show the population declining over the next generation, he notes, even without the increased incidental take of loggerheads by the swordfish fishery. The increased take, he observes, “inflicts an additional loss of four to eleven percent.”

“The proposed action to allow 34 loggerhead sea turtle takes, making up seven mortalities a year, would be an increase in the government-authorized killing of what is now an endangered distinct population,” Enticknap writes.

But even the agency’s estimate of seven mortalities a year is flawed, he goes

on to argue: “NMFS is being overly risky in assuming that 34 takes equals only seven mortalities and only one adult female. This then increases the risk that the [population models] are underestimating the true impact of the proposed action.”

“Ultimately, … it appears NMFS is taking the position that the North Pacific loggerhead population is declining towards extinction anyways, so why not just let U.S. fishermen kill a few more…. This is not only unlawful, it is reckless and irresponsible [and] … in contravention to NMFS’ affirmative duty to recover the species.”

NMFS’ population models for the leatherback are similarly problematic, Enticknap writes, with the agency discounting “the empirical data showing a population decline and the many other factors affecting the population that were not addressed by the climate-based” model.

“The loss of even a few individual loggerheads and leatherbacks is all the more significant in light of the species’ poor baseline condition,” writes Henkin of Earthjustice. As the BiOp itself acknowledges, he continues, “Climate-change impacts are expected to result in the inundation of nesting beaches and possibly skewed sex rations as temperatures at nesting beaches continue to rise.”

Telegraphing possible legal objections to the increased incidental take limits, Henkin notes that the 9th Circuit has already made clear, in a 2008 case, that “where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.”

A ‘Beneficial’ Fishery

Not surprisingly, Leppo, the attorney representing HLA, has a view of the regulations diametrically opposed to those of Earthjustice, Oceana, and the more than 2,000 individuals who signed petitions or weighed in with their own critical remarks during the public comment period last summer.

According to Leppo, “the regulatory record establishes that, taken as a whole, the effects of the shallow-set fishery are beneficial to both leatherback and North Pacific loggerhead sea turtles” (emphasis in original). The chief argument he is able to muster to support this point of view is that there is a market displacement effect, or “spillover effect” that occurs when the regulated boats capture fish that otherwise, the argument goes, would be caught by less regulated, less turtle-friendly fleets.

The “scientific community (including NMFS) has demonstrated that as the shallow-set fishery increases its effort, it displaces the effort of high-impact foreign swordfish fisheries,” Leppo writes.

Earlier this year, the 9th Circuit panel hearing the HLA’s appeal roundly rejected this argument, noting that the 2008 BiOp “found the market transfer effects argument ‘too speculative to be persuasive.’” In that BiOp, the study that supported the spillover-effect argument had been bought and paid for by the HLA.

The 2012 BiOp, prepared after the appeals court heard arguments, relied on a new study of market transfer effects conducted by Hing Ling Chan (with the University of Hawai`i’s Joint Institute for Marine and Atmospheric Research) and Minling Pan (with NMFS’ Pacific Islands Fisheries Science Center). That study, which was released by NMFS the same month as the BiOp, found that “higher Hawai`i swordfish production results in lower demand for imported swordfish, which in turn reduces sea turtle bycatch worldwide because the sea turtle bycatch rates in the exporting countries’ fleets are higher than that in the Hawai`i shallow-set longline swordfish fishery.” Also, they write, their study “implies that reducing Hawai`i shallow-set longline swordish production through regulatory changes … did not cause an overall lower level of sea turtle bycatch in the North and central Pacific… because the Hawai`i … swordfish fishery has one of the lowest sea turtle bycatch rates among the fleets fishing” in the area. In other words, despite the imposition of regulations on the U.S. fleet intended to protect turtles, the turtles did not benefit, since the swordfish were pursued by vessels from countries unconstrained by such regulation.

The Pan and Chan study was harshly criticized by Jason Scorse, professor of international environmental policy at the Monterey Institute and also the director of its Center for the Blue Economy. The study is flawed because the authors did not show that any increase in foreign production of swordfish occurred directly as a result of the Hawaiian restrictions and would not have occurred otherwise, he argues. Or, as he writes, “the only robust way to show that the restrictions on Hawaiian swordfish production lead to increases in global turtle mortality would be to show that the actual swordfish not caught [by the Hawai`i fleet] are caught by non-U.S. producers with higher turtle bycatch rates AND that these represent additional catch for these non-U.S. producers…. Unless it can be shown that the swordfish not caught by Hawaiian swordfish producers are caught by others, leaving total global production unchanged, then the case for increased turtle bycatch simply does not exist.”

Restrict Imports?

Oceana’s Enticknap also disputes the central thesis of Pan and Chan, which is a cornerstone of the BiOp’s finding that turtle takes can be increased without putting their populations in jeopardy of extinction. Etnicknap cites many of the same reasons set forth by Scorse, but goes on to note that NMFS can take action to minimize the turtle bycatch of the less regulated nations through restrictions of imports.

The Secretary of Commerce, he writes, “is required to make a determination that the government of a harvesting nation has ‘provided documentary evidence of the adoption of a regulatory program governing the conservation of the protected living marine resource that is comparable to that of the United States … and which, in the case of pelagic longline fishing, includes mandatory use of circle hooks, careful handling and release equipment, and training and observer programs.’ This has not occurred.”

Henkin of Earthjustice makes the same point: “if NMFS is serious about reducing U.S. swordfish imports and the bycatch associated with them, the agency has legal tools available to address the issue directly, rather than relying on an unproven ‘spillover effect.’ ” The Center for Biological Diversity and Turtle Island Restoration Network “petitioned NMFS to ban swordfish from several dozen nations” under the provision cited above, Henkin notes. “NMFS has yet to take any decisive action on the petition. Given that NMFS has not used the legal tools that not only authorize, but require it to address foreign bycatch of sea turtles and other marine wildlife through direct means, its purported interest in spillover effects rings hollow. All in all, NMFS’s attempts to use theoretical market-based effects to justify allowing the Hawai`i fishery to kill more turtles is both irrational and unlawful.”

Fewer Observers?

Although the new rule is silent on the subject of observers, several of the commenters remark that the Biological Opinion does not require continuation of the policy of having 100 percent observer coverage for the swordfish fleet.

In setting the conditions that NMFS must follow in permitting the swordfish vessels to operate, the BiOp states only that NMFS “shall maintain observer coverage at rates that have been determined to be statistically reliable for estimating protected species interaction rates onboard Hawai`i-based shallow-set longline vessels.”

As Henkin notes, “One of the keys to reducing bycatch … has been the requirement of 100 percent observer coverage and the implementation of ‘hard caps’ that require the fishery to close as soon as the incidental take limit for loggerheads or leatherbacks has been reached.”

Eliminating this requirement will “undermine the effectiveness of the ‘hard caps’ on take,” he writes. “Without 100 percent observer coverage, NMFS must gather and analyze raw data from a subset of vessels, and come up with an estimate of take for the fishery as a whole. This can involve a significant lag time between when the takes occur and when NMFS analyzes the data and determines that the fishery has met or exceeded its incidental take limit. Moreover, there is a great deal of uncertainty involved in estimating actual take based on less than 100 percent observer coverage. The combination of that uncertainty and reduced reporting by vessels without observers could easily translate into a significant increase in take that would not be immediately detected by NMFS.”

NMFS states in response to the comment that the new rule “does not change the 100 percent observer coverage for the fishery.” Mike Tosatto, administrator for NMFS’ Pacific Islands Regional Office, was asked whether the agency was committed to retaining this level. He did not respond by press time.

Advance Approval

In the past, the longline industry and Wespac have bitterly complained that NMFS did not allow them to review biological opinions in advance of their publication. In 2002, HLA won a federal court ruling that determined, under the Endangered Species Act, the organization could be considered an applicant and, as such, have the right to review a BiOp in its draft form.

And it did so in this case. According to the BiOp, “On October 28, 2011, and November 21, 2011, conference calls were conducted between NMFS PRD [Protected Resources Division], SFD [Sustainable Fisheries Division], and the applicant, the Hawai`i Longline Association (HLA) in order to provide an update on where NMFS PRD was in the process…. On January 2, 2012, the draft biological opinion was provided to the Applicant, HLA, for the proposed action. A conference call was conducted with HLA on January 6, 2012. Comments were received from HLA on January 17, 2012.”

The HLA’s comments on the draft rule mention these letters in a footnote and state that “they are incorporated by reference.” (Environment Hawai`i asked NMFS for copies of those letters but had not received them by press time.)

In his comments on the draft rule, Leppo praises the achievements of the shallow-set fishery, stating that since tight regulations were imposed on it in 2004, “loggerhead and leatherback bycatch [has been reduced] by 97 percent and 83 percent, respectively, from prior levels.” He also claims that the fishery has “initiated and continues to support successful sea turtle nesting beach conservation in a direct effort to offset the already negligible adverse impacts of the shallow-set fishery and to promote the recovery of Pacific loggerheads and leatherbacks.”

In filings with the Internal Revenue Service, the HLA, which is a 501(c)(6) organization (one advancing the interests of businesses), the HLA reports it had $594,455 in income for 2010, with expenditures of $772,404. Of that, $580,620 was used to help “formulate fishery regulations and establish sea turtle conservation measures.” And of that amount, $524,982 was paid to Stoel Rives, Leppo’s law firm. In 2009, HLA spent $404,986 for the same purpose, according to its IRS filing, with $374,086 of that going to Stoel Rives.

In an email, Environment Hawai`i asked Leppo to identify those “successful sea turtle nesting beach conservation” measures mentioned in the comment letter, but no response was received by press time.

Patricia Tummons

Volume 23, Number 5 — November 2012

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