Weeks before the state Board of Land and Natural Resources approved a revised, stricter set of lay gill-netting rules late last year, an endangered monk seal pup was found dead, wrapped in a gill net, on a beach in Waimanalo, O`ahu. Within about six months of the board’s action, another monk seal, an adult male, was found dead on O`ahu’s Makua Beach, again, wrapped in a gill net.
After the second seal death, environmentalists renewed their calls for a statewide ban on monofilament lay gill nets. Dan Polhemus, administrator for the state Department of Land and Natural Resources’ Division of Aquatic Resources, said in a statement to the press at the time that fishers who do not follow the DLNR’s new rules – which require nets to be inspected every half hour and be registered with the state, among other things – are at risk of causing a complete ban on lay netting.
On the other hand, Polhemus said, by allowing gill netting to continue, the state itself was in danger of being sued under the federal Endangered Species Act.
Now, instead of banning gill nets, or any other fishing gear with a history or potential of harming endangered species, the state plans to apply to the National Marine Fisheries Services for an incidental take permit (ITP) for its inshore fisheries. Such a permit would allow law-abiding fishermen to harm or kill accidentally a limited number of federally listed sea turtles and monk seals without penalty.
It will be months before the state can complete its application, says Jeff Walters of the Division of Aquatic Resources. He says his department plans to hire two incidental take permit specialists later this year to expedite the process.
While a number of recent documents – including the December 2006 Ocean Resources Management Plan and the 2005 state Comprehensive Wildlife Conservation Strategy for monk seals – promote the idea of the state getting an ITP for its inshore fisheries and describe it as part of an overall conservation strategy, there’s no certainty that the state may be able to obtain one, at least for monk seals.
Paul Achitoff, an attorney with Earthjustice, says he believes an ITP for monk seals is “problematic for the obvious reason that there are too few of them” to allow even one to be taken incidentally. The inshore fishery interaction with turtles is a separate issue, he said.
Chris Yates of NMFS says that although he cannot predict whether a permit can or will be issued, the application will be held to a higher standard because monk seals are so extremely rare. Approval would depend on the state’s proposed mitigation and monitoring measures, he says.
“Green turtles are different because of the numbers of them,” Achitoff said. Green sea turtles are the most common species of sea turtles in inshore waters and are listed as threatened, not endangered. Monk seals, on the other hand, are critically endangered. There are only 1,200 or so seals remaining in the wild. Although most of them live in the Northwestern Hawaiian Islands, NMFS cannot issue an ITP for nearshore fisheries in the Main Hawaiian Islands if the resulting incidental take could jeopardize the seals’ continued existence.
While the state appears to have embraced the idea of getting an ITP for its inshore fisheries, its effort began with the threat of a lawsuit from the Hawai`i Longline Association, whose members chafed under its own ITP governing longline interaction with turtles.
On June 18, 2001, Seattle attorney James Lynch, representing the Hawai`i Longline Association, sent the DLNR a 60-day notice of intent to sue for violations of the Endangered Species Act.
Lynch argued that the ESA requires the state to “immediately curtail” recreational fisheries that are taking listed species and obtain from an ITP from NMFS. Lynch added that the ESA required NMFS to enforce the take prohibitions, “which are being routinely violated by the state….”
According to Walters, “HLA felt there was a double standard, since they were forced to get an ITP” for the sea turtles.
In his letter to the state, Lynch explained, “Recently, the commercial fishing industry has come under attack by environmental groups seeking to eliminate the commercial longline fishery in its entirety. These environmental groups admit that the Hawaiian longline fishery has little impact on the ability of listed turtle species to recover. Notwithstanding this fact, these groups continue to challenge the validity of the commercial longline fishery, while ignoring other and more significant impediments to species recovery, including recreational fisheries occurring in Hawai`i. The [HLA] has a vested interested [sic] in insuring the recovery of listed turtle species which may be incidentally taken in its fisheries. As a result of this one-sided attack on the commercial fishery waged by environmental groups, the [HLA] is compelled to insure the state and recreational fishers fully comply with applicable environmental laws.”
On March 21, 2002, the DLNR submitted to NMFS an application for the incidental take of five sea turtle species – leatherbacks, loggerheads, olive ridleys, hawksbills, and green sea turtles – associated with fishing activities in inshore waters around the Main Hawaiian Islands.
“It was precedent-setting,” says Walters. “There is [an ITP for] a small shrimp trawl in North Carolina for turtles, but in terms of an entire state’s fisheries, no permit has been issued. The state and NOAA Fisheries [NMFS] are in uncharted territory … on how you go about this,” he says.
The state hired a consultant to prepare the application, but about a year into the permitting process, Walters says, staff with the fisheries service informed the state that it would be very difficult to issue a permit for take of turtles while other species (i.e., monk seals) were being taken by the same fishery. As a result, the DAR amended its application to include monk seals. Then in May 2002, NMFS announced its plans to prepare an environmental impact statement for the proposed permit. Public scoping meetings were to have been held in October 2003.
But all did not go as planned. Walters says that after the amended application was circulated unofficially, NMFS expressed some concern about the state’s ability to document and monitor takes of monk seals, and about whether takes could be set at a level that would not threaten the recovery or survival of the species. He says it seemed that NMFS was not going to approve the application as it was written.
In September 2005, three and a half years after the initial permit was submitted, DLNR director Peter Young wrote to William Robinson, head of NMFS’s Pacific Island Regional Office, informing him that the state wanted to withdraw and revise its application. The application’s conservation plan regarding monk seals needed some work, Young wrote.
“As you know, our permit application originally focused only on the take of turtles. The take of seals was added to the application long after the original application was developed. In retrospect, we now realize that more work needs to be done on portions of the application related to seals,” Young said, adding that Robinson’s office had recently informed the DLNR that a separate Marine Mammal Protection Act permit for the take of monk seals might also be required.
Young assured Robinson that even as the state revised its permit application, it would take steps to mitigate impacts to seals and turtles from state-regulated fisheries. Those steps included responding to hooking incidents; protecting seal pups and turtle nests; working to add monk seals and sea turtles to the list of animals protected by the Hawaiian Islands Humpback Whale Marine Sanctuary; and pushing through new lay gill-net restrictions.
He added that the revised conservation plan might include mitigation measures such as requiring fishers to use barbless hooks and to remove gear whenever seals are present; creating regulated fishing zones in areas where seal interactions are frequent; and using public service announcements and other outreach techniques to educate fishers in proper ways to react when seals and turtles are hooked or entangled, among other things.
After the permit was withdrawn, Walters says, the 2006 Legislature approved a bill that made it difficult for the DAR to hire staff to work on the new application. In 2007, however, the division was able to secure two new ITP positions. It had and also received a grant in 2005 to underwrite work on the revised application.
It’s unclear whether the new application will be for both turtles and monk seals.
“If it was just turtles, we’d be okay,” Walters says, adding that the state recently has been told that it could get a permit for the turtles first, and deal with the seals later. Even so, he says, the matter is still open to a “lot of legal interpretation.”
If and when the state gets an ITP covering monk seals, Walters says that it may not prevent seals from getting killed by gill nets, since the permit would only cover fishermen fishing in accordance with an approved conservation plan. The recent seal deaths appear to be the result of illegal fishing, he says.
“Some people think that once [the state] gets a permit, it’s going to stop the seals from dying… I don’t want people to get their hopes up,” he says.
— Teresa Dawson
Volume 18, Number 2 August 2007