Council Looks to Ease Fishing Restrictions As Industry Grapples with Pandemic Impacts

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Book-ended by opening and closing Christian prayers from chair Archie Soliai, the federal Western Pacific Fishery Management Council’s June meeting included the near-unanimous approval of a letter to President Donald Trump, commending him for lifting the commercial fishing ban in the Northeast Canyons and Seamounts Marine National Monument established by President Barack Obama.

The letter also thanks Trump for the millions of dollars in funding to fishery participants affected by the COVID-19 pandemic, including $4.3 million to the state of Hawai‘i, $2.5 million to American Samoa, and $1 million each to Guam and the Commonwealth of the Northern Mariana Islands.

But according to testimony from Hawai‘i Longline Association executive director and former council staffer Eric Kingma, that money is just a fraction of the losses suffered this year due to government restrictions aimed at stemming the spread of the deadly virus.

What’s more, he noted in a summary submitted to the council, Hawai‘i longline vessels did not access any of that federal funding because their “operational and employment structure do not readily fit the [small business assistance] program criteria (e.g. captains and crew are 1099 independent contractors with large percentage of crew foreign workers; little to no loans, rent, or utilities).”

The Hawai‘i longline fishery has lost $15 million in vessel revenue alone in the past three months, Kingma told the council. He added, “If these conditions persist through the end of the year, we’re looking at a $50 million loss through our fleet. I’m kind of optimistic and pleased no vessel has packed it in and gone out of business. If these conditions persist … we are going to lose some vessels. Without tourism opening up in Hawai‘i, our market is in a weak position,” he added.

Hawai‘i Gov. David Ige last month announced that visitors may forgo the current 14-day quarantine if they get a test showing their are coronavirus-free shortly before they depart. With tourism possibly increasing under these new conditions, council member Michael Goto expressed his hope that the pelagic longline market will recover. “Hopefully, we’ve gotten through the worst bit,” said Goto, who also runs the Honolulu fish auction.

To aid the recovery, the council recommended that the National Marine Fisheries Service not draft any burdensome management measures to address the take of federally protected species by the Hawai‘i deep-set or American Samoa longline fleets. The council pointed to two recent executive orders issued by Trump, one regarding the promotion of American seafood competitiveness and economic growth, and another regarding regulatory relief to support economic recovery.

The National Marine Fisheries Service is in the process of completing biological opinions (BiOp) and incidental take statements for those fleets that will allow for limited bycatch of protected species. As with last year’s regarding the Hawai‘i shallow-set fishery, those BiOps will include reasonable and prudent measures (RPMs) to protect endangered loggerhead and leatherback sea turtles and threatened oceanic whitetip sharks and giant manta rays.

Among other things, the BiOp for the Hawai‘i shallow-set longline fishery, which targets swordfish, called for an annual catch limit on the take of leatherbacks, as well as vessel and trip limits for both turtle species. In comment letters on NMFS’s proposed rules to implement the protection measures in the BiOp, both Earthjustice — which represents conservation groups who have sued NMFS over its management of the shallow-set fishery — and an attorney for HLA have criticized various components as too lax or too restrictive, respectively.

While the final rules have not yet been released, the council argued that similar measures should not be applied to the Hawai‘i deep-set and American Samoa longline fleets because they have a relatively small impact on leatherbacks, giant manta rays, and oceanic whitetip sharks compared to foreign fisheries. Also, neither fleet has 100 percent observer coverage, which is required in the shallow-set fishery.

The council plans to come up with specific RPMs at its September meeting. These will likely include a recommendation regarding improved handling techniques.

At the council’s Scientific and Statistical Committee meeting, held early last month, chair Jim Lynch said proper handling techniques could be very important to reducing the amount of trailing gear on animals that are hooked and released.

A de-hooked loggerhead sea turtle about to be released. Credit: NOAA

While the committee has supported the development by the fishing industry of protective measures, the industry hasn’t yet offered anything specific.

“In our conversations with the industry, I was very disappointed with them, to tell you the truth. They didn’t seem to recognize what I would call the urgency. They’re either going to be told what to do or develop what to do. They didn’t seem to have the organizational motivation to produce their own plan,” committee member Ray Hilborn said of a recent meeting between SSC members and Hawai‘i longline fishery members.

“They say, ‘Well, we could do some better crew training … and we’ll call it a day.’ I have a feeling that’s not going to wash,” he added.

Committee member Steve Martell echoed Hilborn’s sentiment, adding that one approach might be to have the industry develop a legally binding bycatch plan. “That puts the onus on them to self- regulate to certain limits. However you want to manage it,” Martell said.

Given the fishery’s current circumstances, Martell conceded that Kingma has “been under a lot of duress with sales and fleet panicking.”

Committee member Milani Chaloupka then reminded members that the Hawai‘i deep-set and American Samoa longline fisheries catch very few loggerheads or leatherbacks. “It’s important not to impose unnecessary economic burdens,” he said.

Kingma testified, “For obvious reasons we’ve been focused on significant impacts of COVID. … I think the timing is such that if COVID never happened, we’d be further along. [It’s] not necessarily the greatest excuse, but it is a reality.”

“We are a small percentage of effort in the Pacific. It’s tough for us to swallow sometimes when we’re faced with restrictive fishing measures,” he said. If given the chance to devise its own plan, Kingma said he thought the Hawai‘i fishery has anopportunity to lead other countries.

At the council meeting, a handful of conservationists testified in support of setting a catch limit for oceanic whitetips and of identifying handling techniques that would increase the likelihood that sharks released alive will survive.

Brettny Hardy of Earthjustice reminded council members that their recommendations to protect the sharks must address the international overfishing, as well as the U.S. fleets’ contribution to that overfishing. According to a draft 2019 Stock Assessment and Fishery Evaluation report, the American Samoa longline fishery caught an estimated 892 oceanic whitetips last year, and the Hawai‘i deep-set longline fleet caught an estimated 2,122 of them.

Even if the relative impact of U.S. vessels is small, the council is still required to develop measures that address that U.S.contribution to overfishing. “They must do something,” she said.

Oceanic whitetip shark.

Executive Orders

In response to Trump’s executive orders promoting American seafood competition and supporting economic recovery, NOAA Fisheries assistant administrator Chris Oliver has asked regional fishery councils to prioritize a list of actions to ease burdens on domestic fishing, including what regulations should be rescinded or modified. The list is due in November.

In addition to the letter Soliai and Simonds already sent to Trump, Simonds encouraged council members to add to a list that staff had drafted.

“One of our biggest issues has been protected species. … Our shallow-set BiOp took 435 days to completion. The fishery is not operating under the new [rules]. The feds are working on comments. If you add that in, it’s 600 days. It’s unconscionable,” she said.

The SSC voted at its June meeting to establish a subgroup to work with council staff on drafting recommendations.

Guam council member Michael Duenas suggested the renegotiation of the Compact of Free Association to regain fishing grounds lost to the Federated States of Micronesia. He also wanted Congress to revisit the Billfish Conservation Act, which prohibits the sale to the U.S. mainland of billfish caught in the Pacific. “It’s just not right that billfish in our area for the most part is not overfished. We should be able to get our fish to the mainland,” he said.

Chair Soliai complained about what he said were NOAA’s “very unfair” recusal determinations for council members, which prevent employees of companies with potential conflicts from voting on matters that affect those companies.

Hawai‘i council member Ed Watamura also raised his concerns about the billfish act, as well as the marine national monuments. He criticized former President Barack Obama’s extension of the Papahanaumokuakea Marine National Monument out to 200 nautical miles as “underhanded and deceptive.”

With regard to protected species, Watamura called fishing restrictions under the Endangered Species Act and Marine Mammal Protection Act unnecessary and unwarranted. “The least impactful threat is from our fishers,” he said. He added that the current closure of fishing groups south of the Main Hawaiian Islands (known as the Southern Exclusion Zone, or SEZ) to protect false killer whales was unconscionable, as was NMFS’s closure last year of the Hawai‘i shallow-set fishery due to excessive take of loggerhead sea turtles.

Goto also pushed for the reopening of the SEZ, especially since a recent stock assessment by the Pacific Islands Fisheries Science Center suggests that the pelagic population of false killer whales is larger than previously thought. “It’s just another part of the U.S. EEZ we’re being denied access to,” he said.

In response to Duenas’s suggestion regarding Guam’s marine boundary, Michael Brakke of the U.S. State Department said any action to remedy that falls outside the scope of the executive orders. NMFS Pacific Islands Regional Office administrator Mike Tosatto also urged council members to make recommendations that fall under what is being requested in the orders.

“Clearly there are some that could increase productivity of the fisheries. To the extent we remain consistent with ESA and MMPA, these can be considered. Let’s keep focus. Because some of them frankly would not be, removal would not be consistent with those acts. It’s not the best use of effort to expend, going down those roads,” Tosatto said, adding, “I think you should think big, then curtail the focus to those with a chance of success.”

Recommendations that would require a change in the law (such as the Billfish Conservation Act), would not likely be successful, he added.

HLA director Eric Kingma testified in support of opening the SEZ. “With the most recent information about false killer whales, it’s likely the fishery was never a strategic stock. [The fishing ban in the SEZ] could be lifted very, very quickly and do a lot of good,” he said. (The National Marine Fisheries Service is in the process of evaluating criteria to reopen the SEZ.)

“There are things we can identify quickly and the Fisheries Service can act on it quickly, rather than waiting for the fall. … I recommend we move as fast as we can,” he said.

Tosatto reminded the council that the executive order on seafood competition calls for more than just a list of recommendations. Those recommendations must also include a proposal to implement or initiate within a year. “You have a task that is more than removal of burdens on the fishery,” he said.

Simonds said the council was aware of its obligations, but that covering everything in the order at the June meeting would be burdensome. “This was just one item that was chosen from the EO. People understand the council is going to be following both EOs. We just concentrated on section 4 [regarding regulations to be removed]. The report is going to be presented to the council at its September meeting. There’s a lot of work. We can’t just say ‘Remove this, remove that.’ We have to explain, have examples,” she said.

David Sakoda, representing the state of Hawai‘i on the council, said the state would like an opportunity to review the list of recommendations before it’s finalized and submitted to the council for approval. “And every member should have that opportunity, too,” he said.

Hawai‘i Reps Continue Standoff with Council

In recent months, the state of Hawai‘i’s representatives on the council have clashed with the council and staff from the National Oceanic and Atmospheric Administration over a variety of issues, mainly those concerning the council’s involvement in the management of state marine resources.

At the council’s March meeting, Ryan Okano, who was then the state’s representative on the council, objected to the inclusion in the agenda of a status update by the state on the aquarium fishing trade, which is the subject of ongoing litigation and occurs exclusively in state waters. The council chose to keep the matter on the agenda, but Okano warned that when the time came to hear it, “you guys can talk about ’em. We not gon’ present nothing.”

When the time came, attorney Jim Lynch, chair of the council’s Scientific and Statistical Committee, updated the council. In his private practice, Lynch represents a group of commercial aquarium fishers.

The June meeting saw a continuation of that friction.

On May 8, in response to an invitation from Peter Navarro of the U.S. Office of Trade and Manufacturing Policy during a conference call on the executive order promoting American competition, Simonds and Soliai sent a letter to Trump asking him to “please consider lifting the fishing restrictions in the Pacific marine national monuments,” including those for the Northwestern Hawaiian Islands (known as Papahanaumokuakea) and the Pacific Remote Island Areas.

“[Fishing] restrictions in the Pacific marine national monuments are impeding America’s three main tuna fisheries in the Pacific and the StarKist tuna cannery in American Samoa from operating at optimal levels and that these fishing restrictions are unnecessary as they have no proven conservation benefit,” they wrote. (Soliai is in charge of government and community relations at StarKist Samoa.)

David Sakoda, who represented the state’s interest at the June meeting, informed the council that the state didn’t necessarily agree with the letter Soliai and Simonds sent. “We don’t feel the fishing has been hurt by [the monuments]. And there are conservation benefits,” he said.

When it came time to vote on the contents of another letter to Trump, which included the commendation for opening the marine national monument in the Atlantic, Sakoda balked. “I don’t know if the state can support the portion that thanks the president or commends the president for modifying the Northeast Canyons and Seamounts Marine National Monument. So I’m going to be voting no,” he said.

The rest of the council members voted in favor.

The most pronounced disagreement between the state and the council centered on the approval of a new marine conservation plan for the Pacific Remote Island Areas. (The existing plan expires in August.) Under the Magnuson-Stevens Act, the plan must include Western Pacific community-based demonstration projects and “other coastal improvement projects to foster and promote the management, conservation, and economic enhancement of the Pacific Insular Areas,” according to a council summary.

Projects included in the plan would be paid for through the council’s Sustainable Fisheries Fund, which receives penalties paid for violations within the U.S. Exclusive Economic Zone in the Western Pacific region, as well as money paid by Hawai‘i longliners to Pacific island territories for bigeye tuna quota.

At the council’s March meeting, which is when staff first recommended the plan for approval, state Department of Land and Natural Resources director Suzanne Case complained that the state had not been consulted during the council staff’s drafting of the PRIA MCP. The draft plan included projects to be undertaken in Hawai‘i and Case said she would rather they not be included. Rather, the projects should stick to fisheries under federal jurisdiction, such as pelagics or bottomfish.

Citing a critical investigation published last year by the online news site Civil Beat on the council’s use of the Sustainable Fisheries Fund, Case said she wanted to keep a close eye on future council expenditures.

“I’ve asked for expenditures from the Sustainable Fisheries Fund and haven’t gotten any. If there’s a place we can look online?” she asked.

When the matter returned to the council last month, Sakoda, representing Case, asked for several amendments to the draft plan, including the inclusion of language requiring transparency and accountability regarding the use of the fund, as well as state concurrence on projects.

Council staff dismissed both of those requests. The plan eventually did include language requiring collaboration with the state, which Sakoda said sufficed. But he questioned the resistance to the transparency language.

NMFS Pacific Islands Regional Office administrator Mike Tosatto replied that the plan is merely a list of projects that NOAA can provide funding to, in accordance with “a slew of guidelines,” including accountability. He said his agency was not looking to add extraordinary requirements.

Simonds added that staff provides reports on how much money has been spent from the Sustainable Fisheries Fund and how much is left. She claimed that contractors and sub-awardees provide reports and that those reports are provided in the council’s newsletters. She added, “On the website, I’m not sure if we list all the financial things. … Maybe you should look at our reports after every meeting that we have. … They’re available to the public.” (The council consistently omits links to financial reports in its list of online documents for each council meeting. And for those documents on agenda items that are available online, the staff has a policy of keeping them up for only two weeks after the council meeting.)

“If you could send us those reports, that would be great,” Sakoda said, adding that the state just wants to make sure there aren’t questions about how the money was spent.

“We’ll show you what we do provide that is to the public and talk about it later,” Simonds said.

With regard to Case’s and Sakoda’s request that projects that occur in areas under state jurisdiction not be included in the MCP, Simonds, Tosatto, and NOAA general counsel Fred Tucher rejected that, as well.

Simonds noted that the council funded the fishpond restoration at He‘eia Kea in windward O‘ahu. Tosatto said the fund could also be used for fisheries education and training.

Tucher said MCP projects aren’t necessarily limited to federally managed fisheries. “I appreciate the state’s concern, but we do not agree,” he said.

“Is there another way you can suggest addressing the state’s concerns for things that are primarily not council-managed fisheries?” Sakoda asked, suggesting that the state might object to an MCP project that involved advocating for or against state community-based fishing areas.

“We don’t necessarily look at the message to be communicated,” Tucher replied.

In the end, the council approved the plan. Sakoda was the sole dissenter.

— Teresa Dawson

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