The popular verdict on a proposal to remove Endangered Species Act protections for the Hawai`i population of the green sea turtle is in: by a staggering margin, opponents of the proposal outnumber those who favor it.
Of course, the National Marine Fisheries Service, whose proposed delisting of the turtle prompted the outpouring of support, is not supposed to be guided by public opinion. Rather, the determination it makes is to be based on the best science available. Still, the support for the Hawaiian green turtle, or honu, as it is called in Hawaiian, has been impressive: As of October 1, when the public comment period closed, more than 100,000 people had signed petitions, submitted letters, or otherwise expressed their opposition to the delisting.
The proposal to delist was submitted earlier this year to NMFS by the Association of Hawaiian Civic Clubs. Comments favoring the proposal came from the Western Pacific Fishery Management Council (Wespac) and a handful of individuals, including some who sit on Wespac advisory panels or who otherwise interact frequently with the council. None of the comments came from anyone writing on behalf of, or identifying himself or herself as a member of, any Hawaiian Civic Club. Nor did the Association itself submit comments.
Most of those commenting, whether for or against, simply expressed personal views. But several environmental groups, whose combined membership reaches into the hundreds of thousands, weighed in with extensive scientific and legal arguments against the finding.
The Wespac comment letter, signed by council executive director Kitty Simonds, points out that NMFS’ recovery plan for Pacific populations of the turtle “includes eight recovery criteria, all of which must be met to be considered for delisting.” Simonds then goes on to argue that those criteria should not apply to the honu, since the delisting criteria “were not created specific to the Hawaiian population, but instead were created for all green turtles inhabiting U.S. Pacific waters.”
The turtle’s protection under the Endangered Species Act (ESA) “not only prohibited traditional, cultural, and subsistence use of honu, but also deprived local communities of the ability to take care of the resource upon which they depended,” Simonds argues.
Red List Status
As far as scientific arguments are concerned, Wespac’s comments rely almost exclusively on the “Red List Assessment” of the Hawai`i green sea turtle published earlier this year by the International Union for the Conservation of Nature. In a review of the turtle’s status in Hawai`i, the IUCN determined that it had recovered sufficiently to merit “least concern” status.
That finding was challenged, however, in the extensively footnoted, 41-page comments submitted jointly by representatives of the Center for Biological Diversity, Turtle Island Restoration Network, the Humane Society of the United States, and Earthjustice. “IUCN’s positive review of Hawai`i’s green sea turtle has several significant flaws,” their letter states. “Its conclusions cannot be readily accepted as true if this population is stripped of protections offered by the federal ESA and other protections that may be removed as a consequence.”
First, they note, removing protections “would reel back many of the important measures that have prevented anthropogenic harm to the sea turtles and their habitat.”
Second, “the IUCN classifications consider different criteria than are used to determine threatened and endangered status under the ESA.” While advocates for delisting claim that the turtle’s population now stands at some 83 percent of what it was before exploitation, they write, “under the ESA, a 17 percent overall decline of the species with ongoing threats would warrant continued protection.”
Third, “the threats from climate change, including sea level rise, ocean warming, and ocean acidification, were underestimated by the IUCN status review.”(The IUCN assessment dismisses the potential impacts of sea-level rise with the statement that, while “increases in sea-surface temperature and intensity and number of severe storms are potential climate change-induced threats facing sea turtles… , there is evidence of long-term accretion of islands, so that this effect may be somewhat mitigated.” It also notes, however, that with warming temperatures, more males may hatch, “leading to a proportional increase in male production.”)
The Conservation Council for Hawai`i addressed many of the same points. In a 13-page comment, heavy with citations to law, legal precedent, and scientific literature, the group points out that in considering whether to delist a given species, NMFS must consider five criteria for listing set forth in the ESA. If any one of those five criteria persists, a species may not be delisted, CCH notes. Those factors involve: harm to the animal’s range; overutilization; disease or predation; inadequacy of existing regulations; and ”other natural or manmade factors affecting its continued existence.”
CCH argues that recent case law from the 9th Circuit suggests that NMFS must consider the potential impacts climate change may have on “all stages of honu life history.” And, notwithstanding the optimistic view in the IUCN assessment, those impacts could well be devastating. CCH and other commenters reference studies that show sea level rise associated with warming oceans could wipe out or inundate 30 percent or more of the land mass of islets at French Frigate Shoals, where most of the green sea turtles nest. “Whale-Skate Island serves as a prime example of honu nesting habitat loss due to sea level rise,” CCH notes. “Before 1997, Whale-Skate Island was the second largest honu nesting beach at French Frigate Shoals. By 1997, however, Whale-Skate Island eroded away and completely submerged underwater.”
Whatever the effect of climate change, CCH states, “the precautionary principle must apply.”
As for overutilization, that, too, is an ongoing condition, CCH notes. Not only are green turtles hooked by longline fishing vessels – in 2011, the incidental take limit of 4 turtles per year was exceeded by the shallow-set longline fishery – but near-shore fisheries and recreational users exact high tolls as well, accounting for about 12 percent of the turtles stranded between 1982 and 2003.
“Although fisheries interactions have declined,” CCH continues, “NOAA should consider that Hawai`i’s increasing population, expanding fisheries, and ever-expanding tourism economy might cause these threats to escalate.”
CCH also takes exception with the petition statement that Hawai`i has regulations in place that will give the turtle adequate protection if it loses its federal status as threatened: “Even if the State of Hawai`i did have a management plan, many private citizens and environmental organizations have questioned the State of Hawai`i’s ability to enforce a management plan that would continue to sustain honu population.”
Contrary to ESA
The Hawaiian Civic Clubs’ petition to delist proposes a two-step process. First, NMFS is asked to find that the Hawai`i green turtles constitute a “distinct population segment” (DPS), separate from the wider Pacific population of green turtles. Second, it is asked to find that this new DPS is healthy enough to warrant removal from the protections afforded by the Endangered Species Act.
But the Conservation Council for Hawai`i raises the point that the petition to delist the Hawaiian green turtle and at the same time determine it to be a distinct population segment violates the ESA.
“Congress intended the DPS [distinct population segment] to provide a means to give species greater protection, when the data are limited to one segment of the species and not on the global level,” it notes. “Logically, a population can only be listed if it is ‘threatened’ or ‘endangered.’ A species cannot be simultaneously imperiled and recovered. Therefore, if the [Fish and Wildlife Service] and [National Oceanic and Atmospheric Administration, NMFS’ parent agency] decide to list honu as a DPS, the logic of the rule appears to require the agencies to also develop and implement a recovery plan pursuant to ESA.”
In other words, the act of designating a DPS is a tool intended to protect small populations of species when their larger populations do not qualify for ESA protection.
CCH notes that “previous attempts to use DPS Policy to delist species have resulted in considerable litigation. In such cases, courts within the 9th Circuit have preserved the ESA listing. For example, the United States District Court for the District of Oregon interpreted the DPS rule to mean that ‘listing of population segments is a proactive measure to prevent the need for listing a species over a larger range – not a tactic for subdividing a larger population…”
Defenders of Wildlife and the Sea Turtle Conservancy address the same point. “We agree that DPS designation can provide beneficial distinctions in protections needed between truly discrete populations,” they state. “Nevertheless, we are concerned in this instance that DPS designation not be used improperly to carve out and prematurely diminish protections for species that do not meet the DPS criteria or have not fully recovered.”
By law, NMFS must make a decision on the Hawaiian Civic Clubs’ petition within one year of receiving it – in this case, by February 14, 2013.
Meanwhile, in Hawai`i…
Last spring, the Hawai`i Legislature’s House Committee on Water, Land, and Ocean Resources held a hearing on a resolution that would have had the state urge NMFS to delist the green turtle. Among other things, the resolution (House Resolution 61 and the identical House Concurrent Resolution 87) stated that the delisting was warranted because turtles had now recovered to the point that their numbers were too great and were inflicting harm on the environment.
Hundreds of individuals submitted testimony, with the overwhelming majority opposed to the resolution. Speaking in its favor were representatives of a number of Hawaiian Civic Clubs as well as the president of the association, Soulee Stroud. Many of those supporting the resolution repeated the claim that the environment was burdened by too many turtles.
That idea was rejected, however, by NMFS. Lisa Croft, deputy regional administrator of NMFS’ Pacific Islands Regional Office in Honolulu, took the unusual step of submitting testimony disputing the claims.
“The resolutions state that ‘the environment and ecosystem are suffering from the current over-protection, over-population, and lack of management of honu,’” she wrote. “The resolutions suggest that this is scientific and accepted fact. However, it is not. The level of scientific study necessary to support the broad statement in the resolution is unavailable. The green sea turtle has and continues to be an important part of the marine and coastal ecosystem of Hawai`i, and it is inaccurate to assign broad environmental and ecosystem problems to the honu.”
In his testimony on the resolution – which was eventually shelved – Stroud, the AOHCC president, singled out one Civic Club for special praise for its role in pushing for the delisting of the turtle: “We especially want to commend the Maunalua Hawaiian Civic Club for their patient reviews and analyses of the honu situation and for bringing the resolution to [the AOHCC] convention for so many years.” According to Stroud, the AOHCC had been discussing the turtle issue since 2007.
The Maunalua Hawaiian Civic Club was formed in October 2006, just months before the AOHCC first took up the turtle delisting proposal. Since that time, Kitty Simonds, Wespac executive director, has served as its president, or pelekikina. Its vice president is Mark Mitsuyasu, a fishery program officer for the council. One of its four directors is Charles Ka`ai`ai, yet another Wespac employee. In all, of the eight named officers or directors of the club, three are directly employed by Wespac.
Volume 23, Number 5 — November 2012