Council Issues Warning to NMFS Director After Lawsuit Threat Over Imperiled Shark

posted in: April 2019 | 0

On February 7, the Conservation Council for Hawai‘i and Kona activist Mike Nakachi sent the National Marine Fisheries Service (NMFS) a warning: Fulfill your obligations to protect threatened oceanic whitetip sharks or face a lawsuit that could halt Hawai‘i’s two longline fisheries, as well as the American Samoa longline fishery and the U.S. purse seine fishery in the Western Pacific.

To say the Western Pacific Fishery Management Council is unhappy about that would be an understatement.

In listing the oceanic whitetip shark as threatened in January 2018, NMFS reported that the catch rate for the shark in the Hawai‘i longline fishery – a measure of its relative abundance – had declined by more than 90 percent since 1995. Catch rates throughout the Western and Central Pacific have declined similarly, driven mainly by a high international demand for the sharks’ fins.

Scientists studying the region have determined that fisheries there are killing the sharks at a highly unsustainable rate.

Under the Endangered Species Act, NMFS’s Office of Sustainable Fisheries is required to consult with the agency’s Office of Protected Resources to determine the potential impacts of the U.S. pelagic fisheries on the sharks and then issue a biological opinion on whether the fisheries are likely to jeopardize the sharks’ continued existence. That opinion would include an incidental take statement authorizing the fisheries to harm or kill of a limited number of sharks and specifying measures to minimize the effects of that take.

In the 60-day notice of intent to sue the service, Earthjustice attorney Christopher Eaton — representing the Conservation Council and Nakachi — argued that by allowing the fisheries to continue before completing consultation, the service is violating the act.

“NMFS may not authorize pelagic fisheries activity until it completes consultation on the fisheries’ effects on the oceanic whitetip shark and ensures its authorization of the fisheries and implementation of the Pelagic FEP [fishery ecosystem plan] will not jeopardize the species,” he wrote.

As of the March meeting of the Western Pacific Fishery Management Council, the service had not yet completed its consultations.

The Numbers

Recognizing the harm fishing was inflicting on oceanic whitetip sharks, the international Western and Central Pacific Fisheries Commission (WCPFC) several years ago passed a measure that requires vessels from participating countries to release any oceanic whitetip shark as soon as possible after it is brought alongside the vessel and “to do so in a manner that results in as little harm to the shark as possible.”

The Inter-American Tropical Tuna Commission (IATTC), which governs pelagic fisheries in the Eastern Pacific Ocean, adopted a similar measure, which requires vessels to promptly release the sharks unharmed, to the extent practicable.

Both measures include provisions intended to prevent the intentional harvest of the sharks. In its own attempt to reduce shark finning, NMFS also published a rule in 2011 prohibiting their retention by pelagic longline fleets.

Despite the federal and international measures, the U.S. pelagic fisheries in the Pacific still catch hundreds or thousands of whitetips, depending on the year.

Earthjustice’s Eaton pointed out in his letter to NMFS that the Hawai‘i deep-set longline fishery, which primarily targets bigeye tuna, caught an average of 800 oceanic whitetip sharks a year between 2007 and 2016. Last year, the fishery’s 140-plus vessels caught 366, and the year before, they caught 535, according to logbook reports.

The Hawai‘i shallow-set fishery, which primarily targets swordfish, is a much smaller fishery and catches far fewer whitetips, about a few dozen a year, according to logbook reports. The American Samoa longline fleet, although similarly small, catches a few to several hundred of the sharks a year. Last year, the fishery’s 13 vessels caught 311.

Data on how many oceanic whitetips are caught and killed each year by the U.S. Pacific purse seine fishery are scarce, although both international Pacific fishery organizations, WCPFC and the IATTC, require that participating member countries provide that information. Last year, the purse seiners’ massive nets were reported to have hauled in 11 whitetips in the Western and Central Pacific, nine of which were dead.

Generally, 25-30 percent of the sharks are released dead by the longline fisheries, according to data submitted to the regional fishery organizations. While the purse seine fishery seems to catch fewer whitetips, it kills between 80 and 90 percent of them.

How many of the sharks released alive actually survive is unknown, but resource management organizations, such as the IATTC, have acknowledged that post-release mortality is a concern and that the measures they have passed may be insufficient.

‘Dilatory Pace’

NMFS is supporting tagging research in waters off Kona to learn as much as possible about the sharks’ basic ecology and stock structure, and environmental variables associated with their presence or absence, among other things, according to a blog published by the National Oceanic and Atmospheric Administration.

The agency has also been working for months on consultations for some of the pelagic fisheries in the Western Pacific region. To Western Pacific Fishery Management Council executive director Kitty Simonds, however, the service is moving way too slow.

In delivering her periodic report to the council at its meeting last month, she warned it would be unequivocally bleak. She informed the council of Earthjustice’s notice of intent to sue, which included an injunction threat aimed at the Honolulu- based deep-set longline fishery, which she said is the country’s seventh-most valuable; the Hawaii shallow-set fishery, which reportedly provides 50 to 60 percent of the domestic swordfish in the United States; and the American Samoa longline and Pacific purse seine fisheries.

“Why? NMFS has failed to do its job,” Simonds said, complaining that the closure threat resulted from the “dilatory pace” with which NFMS’s Pacific Islands Regional Office (PIRO) was proceeding with its consultations.

The Earthjustice notice was a response to NMFS not fulfilling its duties and not prioritizing completing the consultation process, she said. As a result, the fisheries are in “great danger,” she said, adding, “I can’t emphasize enough the lack of government support.”

Mike Tosatto, administrator for the NMFS’s Pacific Islands Regional Office, called Simonds’ statement disappointing and stressed that his staff are “nothing but diligent professionals pursuing the work they need to do to protect our protected species … in partnership with this council.”

“I’ll ask all of you and the executive director to stop before we do damage to that partnership,” he added.

Simonds was unmoved: “I’m not talking about the staffs of the region and the [Pacific Islands Fisheries Science] Center. I am talking about the leadership in terms of the urgency to plan their work to also accommodate the council, which has not happened. … I hope I’ve not offended the staff. I’m not talking about the staff. I’m talking about leadership.”

“Do we just wait for the lawsuit to come across and some other process starts with the possibility the fisheries start closing? … What are the possible impacts on fisheries, in particular the American Samoa longline fishery?” asked council member Christinna Lutu-Sanchez, representing American Samoa fishers.

Tosatto said he could not respond to questions about how NMFS intends to respond to the notice of intent to sue. Notices of intent “happen throughout agencies all the time. Sometimes they actually sue. … From here, we frankly don’t have insight into their motivations.”

In the meantime, the fisheries continue to operate, he said. He noted that NMFS was working on reinitiating consultation for the American Samoa longline fishery.

Addressing questions from council members about what NMFS was doing in response to the notice from Earthjustice, National Oceanic and Atmospheric Administration counsel Kristen Johns explained that if a lawsuit were initiated, “we would then react to that lawsuit when it was filed.”

“I imagine the risk could be disastrous for the fisheries, not only for American Samoa, but Hawai‘i. That’s a big concern, I’m sure you can appreciate. … I assume they would be asking for an injunction. … Am I correct?” asked council chair Archie Taotasi Soliai, an executive with the Starkist tuna processing plant in American Samoa.

Johns said the plaintiffs could seek to fully or partially close the fisheries and seek litigation costs.

“That’s not disastrous. That’s catastrophic,” Soliai said.

Dean Sensui asked if it was the office’s priority to complete the shark consultations before completing a long-awaited biological opinion for loggerhead and leatherback sea turtles for the Hawaii shallow-set fishery.

Not necessarily, Tosatto replied.

Council member John Gourley of the Commonwealth of the Northern Mariana Islands asked Tosatto if his office had sufficient staff to do four consultations – one for each of the U.S. Western Pacific fisheries that interact with the sharks – at the same time before completing the one that’s been ongoing for the sea turtles.

Tosatto replied that his agency was initiating consultations on the fisheries. “It’s not an easy or myopic decision to make. It’s relatively complex and we’re acting as best we can,” he said.

Throwing Rocks

Throughout the council’s three-day meeting, members lamented the various impediments to fisheries in the region, including litigation over an area closed to longliners in American Samoa, the closure earlier this year of a huge fishing area south of the Main Hawaiian islands due to the deep-set fishery’s injury and killing of false killer whales, and — not least — the closure on March 19 of the Hawaii shallow-set fishery due to the taking of 17 endangered loggerhead sea turtles.

At the end of the last day of the council meeting, staff presented a final recommendation that seemed meant to encapsulate the council’s general feeling regarding who was to blame for these impediments. Staff started off by recommending that the council request that PIRO complete the shark consultations for the four affected pelagic fisheries by June 1.

“The Council makes this request to ensure the expeditious completion of the consultations to reduce litigation risks associated with the continued operation of these vital fisheries. The Council and its staff are ready to assist NMFS to complete these consultations according to the existing ESA-MSA Integration Agreement,” the recommendation read, referring to the Endangered Species Act and the Magnuson Stevens Act, which governs U.S. fisheries.

Then things seemed to turn personal.

“To date, PIRO leadership has not ensured timely completion of ESA consultations for these fisheries as well as MSA fishery actions (e.g., territory bigeye specifications, FEP review, etc.), leaving the Council highly uncertain about its confidence in PIRO leadership to meet statutory deadlines and ensure the sustainability of the region’s fisheries as mandated by the MSA,” the recommendation continued.

Then came the threat.

“If PIRO leadership cannot ensure completion by the requested deadline, the Council may take a vote at the June Council meeting on whether or not it has confidence in the Regional Administrator to lead NMFS PIRO. The Council directs staff to notify Chris Oliver, Assistant Administrator for NOAA Fisheries, of this timeline as well as concerns with the lack of timely completion of the ESA consultations for the region’s pelagic fisheries,” it stated.

Tosatto asked to speak before staff read aloud the proposed — and in his view, offensive — language to the council.

“If it is not your intent to permanently damage the partnership we have, I ask you not to read this and not to go down this path. It’s clear, as council members, you do not understand the work that we do,” he said, pointing out that he had offered each council member the opportunity to visit with his staff to help them understand what it takes to complete the work it does.

However, he continued, “If you have that ill intent, please proceed.”

Simonds dismissed Tosatto’s characterization of the recommendation. “There is no ill intent in this, but given what has happened to our fishery over the last several years … For three years, our fishery was shut down not [as a result of] anything to do with overfishing,” she said, referring to times when the deep-set longline fishery hit its international bigeye quotas before NMFS could make allocations from the Pacific island territories official.

She pointed out that one year, the deep-set fleet had to stop fishing for about three months after reaching its WCPFC quota. “Sixty-five days … What do you think happened to the market? The reason [for the delay was] the regional office didn’t complete paperwork,” she complained.

Earlier in the meeting, she expressed her frustration with the service’s repeated delays in the issuance of a draft biological opinion on the Hawai‘i shallow-set fishery’s impacts on loggerhead and leatherback sea turtles. A draft was supposed to have been issued late last year, but still had not been released before the end of the council’s March meeting, in part due to the federal government shutdown. In the meantime, because the fishery’s annual hard cap for loggerheads had been reduced last year by court order from 34 to 17, the fishery closed on March 19.

Speaking to the recommendation from her staff, Simonds reiterated her long-standing argument that the council needs to be included in the service’s planning process. “We have tried every which way to develop [memoranda of understanding] documents, action plans. … Nothing was working,” she said.

She went on to say that the council’s and NMFS staffs work well together, but complained that there was no sense of urgency among the agency’s leadership to get things done.

“We do understand what it takes. We’ve been in this business for 40 years,” she said.

Council chair Soliai said he agreed with Simonds that there was no ill intent in the recommendation. “I think this is not a slap in the face, but this is a call to expedited action, just a show that we’d like a little bit more urgency in addressing the concerns we talked about all week,” he said.

Despite their assurances, Tosatto said that if the council approved the recommendation, the message sent to his staff would be damaging, nonetheless. “This will ripple through staff, what is sent, even though it’s very pointed in my direction,” he said.

While he said he took full responsibility for PIRO’s actions (or apparent inaction), he explained that there are many reasons why things happen the way they do, suggesting that his agency isn’t solely responsible for delays.

“It’s a complex business to work in. … There are many rocks to be thrown. … There are many fingers to point,” he said, later noting that his agency has never received a document from council staff adequate enough to put into the Federal Register, without substantial revision. Preparing documents that are acceptable to NOAA’s general counsel takes time, he said.

“There are many external drivers. Some the council staff knows about. Some they don’t. Some they agree with. Some they don’t. At the end, we’re going to have a legal document that goes out the door and nothing else,” he said.

Still, the council members piled on.

Mike Goto, a member of the Hawai‘i Longline Association and head of the Honolulu fish auction, explained that he supported the recommendation because he wants to be able to tell his clients, which include both fishermen and marketers, that “everything that could be done was done” to protect the fisheries.

Council member Lutu-Sanchez added later, “We can’t tell the fishermen, ‘Sorry, you can’t go fishing because some report isn’t done.’ They just don’t understand that.” As she saw it, the recommendation sends a “message of desperation [for NMFS to] finish whatever needs to be done.”

Council member Ed Watamura of the Waialua Boat Club, suggested that the service was biased in its treatment of fisheries.

“Basically, it comes down to a conflict between fisheries and protected species. The fisheries are being affected and shut down because of the protected species concerns.

“Even if we look at the composition of NOAA and we look at how many protected species people are employed … compared to sustainable fisheries, it becomes evident where all the money and resources are being put. Just do the math. … I think the actual focus of resources needs to change,” he said.

Council member Henry Sesepasara, who works for the American Samoa Department of Marine and Wildlife Resources, did express concern over what the council’s relationship with PIRO would be like if the recommendation were approved. Tosatto assured him that however the council voted, “PIRO and PIFSC will act professionally, competently and diligently.”

Even so, Tosatto added that the finger- pointing part of the recommendation “really serves no purpose in this forum here and now.” And non-voting council member Brian Peck of the U.S. Fish and Wildlife Service agreed.

Council member Ryan Okano of the Hawai‘i Department of Land and Natural Resources was the sole voting council member — aside from Tosatto — who did not support the motion. Before the council vote, Okano expressed how important he thinks relationships are. “Not everybody agrees with decisions that my agency does, but I still try to retain positive relations. That’s the way I was brought up. This” — referring to the recommendation — “bothers me,” he said. “I’m not trying to say anybody’s wrong, anybody’s right. I’m gonna abstain. The reason: I don’t want to damage relationships. I don’t want to take sides,” he said.

(For more background on this issue, see “NMFS Seeks Comments on Protecting Oceanic Whitetip Sharks Under ESA,” from our February 2016 issue, available at

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