Court Upholds Transfer of Bigeye Quota to Hawai`i Longline Fleet

posted in: January 2016 | 0

For years, environmental groups and some members of the Western and Central Pacific Fisheries Commission (WCPFC) have groused about the Hawai`i longline fleet being allowed to skirt its international bigeye tuna quota by attributing some of its catch to U.S. Pacific island territories.

In 2014, the Conservation Council for Hawai`i, the Center for Biological Diversity, and the Turtle Island Restoration Network sued the National Marine Fisheries Service in federal court, seeking a ruling that would end the practice. But on December 23, U.S. District Judge Leslie Kobayashi denied their plea, stating in her decision that despite the plaintiffs’ arguments to the contrary, all of WCPFC’s conservation and management measures (CMMs) regarding bigeye seem to treat the United States separately from the territories of American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. For this reason, among others, Kobayashi found that NMFS’s rule — known as Amendment 7 — allowing quota transfers of up to 3,000 metric tons a year from the territories to the Hawai`i fleet is not arbitrary or capricious.

Because the commission’s most recent tuna conservation measures (CMM 2013-01 and 2014-01) are “ambiguous as to the issue of whether [participating territories] are separate entities from their responsible Contracting Parties for purposes of catch allocation limits,” Kobayashi stated that she looked to the prior relevant CMMs, which do, indeed, separate the territories from the United States in their list of flag states.

“Requiring each [participating territory] to attribute its catch to its responsible Contracting Party would be a major policy change [that] would be contrary to other policy statements in CMM 2013-01,” she wrote, referring to language in a number of WCPFC conservation measures that seeks to avoid imposing a disproportionate burden on small island developing states (SIDS) or participating territories (PT).

“Not only is CMM 2013-01 silent on the purported change in the policy regarding the allocation of the PTs’ bigeye tuna catch, the Commission’s Summary Report of the session during which that measure was adopted does not reflect any discussion of the purported change,” she continued, adding that the commission in 2013 also adopted two measures addressing SIDS and PTs.

“Thus, the interpretation of CMM 2013-01 that Plaintiffs advocate – in which PTs are no longer recognized as separate entities for purposes of catch allocation – is inconsistent with the Convention’s and the Commission’s policies, and it is not supported by the record of the Commission’s session during which the measure was adopted,” she wrote.

She further argued that requiring American Samoa to attribute its catch to the United States would “put a disproportionate burden of conservation efforts on it and would prejudice its ability to develop its fishery.”

Given the fact that the Hawai`i fleet hit its quota early this year, “[t]he American Samoa fishery would likely be unable to catch its annual average, let alone a larger amount if it decided to responsibly expand its fishery,” she wrote. “The more sophisticated Hawai`i-based longline fishery – already faced with a reduced catch limit – would likely reach the United States’s annual catch limit before American Samoa reached its annual average, and the fishery for the United States and all of the U.S. PTs would be closed thereafter. Further, the Hawai`i-based longline fishery would have no incentive to support the development of the American Samoa fishery because the expansion of the American Samoa fishery would reduce the amount of bigeye tuna that the Hawai`i-based fishery could catch,” she wrote.

— Teresa Dawson

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