A federal rule that, for all intents and purposes, does away with bigeye tuna catch limits for the Hawai`i longline fleet is being challenged in U.S. District Court.
The lawsuit, filed November 20, was brought by Earthjustice on behalf of three conservation groups: Conservation Council for Hawai`i, the Center for Biological Diversity, and Turtle Island Restoration Network. It asks the court to find that the National Marine Fisheries Service, the U.S. Department of Commerce, and Secretary of Commerce Penny Pritzker violated an international treaty and the Administrative Procedure Act by adopting a rule on October 28 sanctioning a new system of bigeye quota allocation. In effect, the rule increases by as much as 3,000 metric tons a year the amount of bigeye tuna that Hawai`i longline vessels may bring into port in Honolulu. This amount is almost as much as what is allowed to the fleet under a quota system established by the international Western and Central Pacific Fisheries Commission. (For 2014, the quota was 3,763 metric tons. In 2015 and 2016, it is 3,554 MT, and it declines to 3,345 MT in 2017.)
“NMFS’s purpose in adopting the rule was to enable the Hawai‘i-based deep-set longline fleet to continue fishing for bigeye after it reaches the catch limit for U.S.-flagged longline vessels set forth” in the WCPFC conservation and management measure for tropical tunas, writes Earthjustice attorney David Henkin in the complaint.
The “quota shifting rule,” as Earthjustice calls it, runs counter to the obligation the United States and all other members of the WCPFC have to ensure that the effectiveness of the commission’s conservation measures “is not undermined by a transfer of longline fishing effort or capacity to other areas within the Convention Area,” the lawsuit says. Most of the catch of bigeye that lands in Honolulu is caught in waters under the commission’s jurisdiction.
The rule establishes an annual quota for each of the three U.S.-flagged territories in the Pacific: American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. Then it allows each of these territories to allocate up to half of that amount to the Hawai`i fleet. Initially set at 2,000 MT a year, the quota is to be adjusted annually.
“First, the Quota Shifting Rule invents out of whole cloth separate catch limits for each U.S. Pacific territory, above and beyond the 3,763-metric-ton quota for all U.S.-flagged longline vessels… The rule then purports to authorize each territory to enter into an agreement to allocate to the Hawai`i-based deep-set longline fleet (which targets tuna, including bigeye) up to 1,000 metric tons of its fictional 2,000-metric-ton quota.”
Since the U.S. Pacific territories “collectively catch far fewer than 1,000 metric tons of bigeye tuna per year,” the new rule “allows for a substantial net increase in fishing effort by U.S. vessels, undermining international efforts to end overfishing of bigeye tuna,” the complaint says.
In fact, the new rule reflects a practice that has been in place since 2011. Each year, as the Hawai`i longliners approach their annual quota of Western Pacific bigeye, NMFS begins to allocate the catch for the remainder of the year to one of the territories – whichever one has signed an agreement for that year with the Hawai`i Longline Association. The HLA pays a certain amount to the territory, which is to be deposited into a fund that is to finance improvement in fisheries management in the area. (Under the Magnuson-Stevens Act, the funds for each of the territories are controlled by the Western Pacific Fishery Management Council, or Wespac.)
What is different this year, and which is called out in the lawsuit, is the language in the WCPFC conservation and management measure (CMM) for tropical tunas. Until last year, the CMM that governed catches of bigeye did allow for separate catch limits for the U.S. territories and the United States proper. However, the CMM that was adopted in December 2013, the lawsuit notes, does not establish separate longline catch limits for the territories. “Instead, CMM 2013-01 provides that ‘attribution of catch and effort shall be to the flag state’ and establishes a single bigeye catch limit for all U.S.-flagged longline vessels, including both Hawai`i-based longline vessels and any longline vessels from the U.S. Pacific territories.”
A Different Reading
In the rule published by NMFS on October 28, NMFS seems to acknowledge that the U.S. territories are not given individual catch limits in CMM 2013-01. That measure, NMFS states in responding to comments on the draft rule, “does not establish an individual limit on the amount of bigeye tuna that may be harvested annually in the WCPFC Convention Area by Small Island Developing States (SIDS) and participating territories (PTs) of the WCPFC, including American Samoa, Guam, and the CNMI.” However, it goes on to say, “to allow for the limited transfer of quota from the U.S. territories” to the Hawai`i longliners, NMFS “is establishing 2,000-MT limits for each territory. These overall limits … will help ensure sustainability of the stock.”
But Henkin of Earthjustice argues that establishing such limits flies in the face of the WCPFC measure.
“Paragraph 5 of CMM 2013-01 expressly states that, for purposes of the longline catch limits … ‘attribution of catch and effort shall be to the flag state’ (except in cases involving charter arrangements, which are not at issue here),” Henkin said in an email to Environment Hawai`i. “Vessels from the U.S. Pacific Territories fly the U.S. flag, so under this rule, their catch is attributed to the United States.”
“Notably, CMM 2008-01” – the previous WCPFC measure regulating bigeye catches – “did not have this flag-based attribution rule,” Henkin wrote.
In the 2013 conservation measure, there is no provision made for individual longline quotas for the territories. Rather, Paragraph 7 of the measure states: “Unless otherwise stated, nothing in this measure shall prejudice the rights and obligations of those small island developing State Members and Participating Territories” – this would include the U.S. island territories – “seeking to develop their domestic fisheries.”
The Current Agreement
Under the new rule, November 28 is the deadline by which the HLA and its cooperating territory must submit for NMFS approval the agreement they have worked out. That date is no accident: in recent years, the Hawai`i fleet has come dangerously close to meeting its 3,763-MT quota just as the high season for ahi is getting in high gear.
In 2013, the HLA signed on with the Commonwealth of the Northern Mariana Islands, agreeing to buy 1,000 tons of its quota for three years. For 2013, payment was to have been $150,000; for 2014, $175,000; and for 2015, $200,000.
In September 2014, the agreement was amended to reflect the anticipated new federal rule, a draft of which had been published in January 2014. Although the new rule states that the quota set at 2,000 metric tons is to be reviewed annually and adjusted to reflect the conservation status of bigeye tuna – now in an overfished state by any standard – the agreement makes no mention of any adjustment.
About the only indication that HLA and the territory recognize that there may be a crisis in bigeye management comes at the end of the “Recitals” section of the agreement: “In executing this Agreement, the parties considered and accounted for recent and anticipated harvest on the bigeye tuna stock that is the subject of this Agreement.”
Michael Tosatto, administrator of NMFS’ Pacific Islands Regional Office in Honolulu, said that NMFS had approved the agreement for 2014. “We did receive such an arrangement and determined that it met the requirements of the regulations,” he stated in an email to Environment Hawai`i.
But what about the failure of the agreement to account for any annual adjustment of the territorial quota? “It is important to remember that the NMFS [regulations] are the meaningful document,” Tosatto said. “A 2,000 ton limit and 1,000 tons available for such arrangements is established for 2014. There will be annual decisions on both these points by NMFS…. Next year, new limit decisions will guide the availability.”
— Patricia Tummons
For Further Reading
Environment Hawai`i has published several articles on this practice of “quota shifting.” See:
- “Hawai`i Longliners’ Bigeye Tuna Limit Jumps 80 Percent Under Proposed Rule,” April 2014;
- “Up to 17 Percent of Bigeye Catch in Hawai`i Is Logged to Territories,” April 2014;
- “NMFS Ignores Letter of the Law in Extending Bigeye Quota Exemption,” August 2013;
- “Federal Law Gives Hawai`i Longliners Free Rein to Ignore International Quota,” January 2012.
Volume 25, Number 7 January 2015