Federal Agency Rejects WesPac Plan To Manage Reefs in Northwestern Islands

The years-long free-for-all for control over natural resources in the Northwestern Hawaiian Island archipelago took another twist recently, when the acting regional administrator for the National Marine Fisheries Service’s Southwest Region rejected an important section of the Western Pacific Regional Fishery Management Council’s proposed Coral Reef Ecosystem Fishery Management Plan.

In addition, Region IX of the Environmental Protection Agency has indicated concerns over “conflicting information provided in the FEIS [final environmental impact statement for the plan], and incomplete information regarding how the management conflicts will be resolved.”

The dispute over who should manage the federal waters around the Northwestern Hawaiian Islands, which contains more than 70 percent of the nation’s coral reefs, goes back to the last days of the Clinton administration, when two executive orders set in motion a process intended to lead eventually to the designation of much of the area (generally, that stretch of water between three and 100 miles out from emergent land) lying within the U.S. 200-mile Exclusive Economic Zone as the Northwestern Hawaiian Islands Coral Reef Ecosystem National Marine Sanctuary. The Bush administration has decided to leave the executive order intact, so now the National Oceanic and Atmospheric Administration’s National Ocean Service is in the process of adopting a reserve operations plan. Public hearings on the draft plan were held throughout the state in the spring.

The state of Hawai`i Department of Land and Natural Resources, meanwhile, is attempting to develop its own management plan for state waters, which form a three-mile-wide belt around most of the emergent land in the 1,200-mile-long archipelago.

Nor should the U.S. Fish and Wildlife Service to be overlooked as a player. On the basis of rude maps drawn nearly a century ago that established the Hawaiian Islands National Wildlife Refuge extending from Nihoa northwest to Pearl and Hermes Reef, the service claims jurisdiction over waters to a depth of 10 fathoms (60 feet) off most of the lands in the refuge (at Necker, the depth is 20 fathoms).

‘Political Expediency

‘ On June 14, 2002, acting NMFS Southwest Region administrator Rod McInnis informed the chairman of the Western Pacific council, Frank Farm, of the decision to reject that portion of the plan that applied to the EEZ around the Northwestern Hawaiian Islands. In explaining his decision, McInnis cited the Department of Commerce’s review of the Clinton executive orders setting up the reserve. “As you are aware,” he wrote, “in March of this year É [t]he Administration determined that the long-term protection of the marine resources of the NWHI will come under the auspices of the National Marine Sanctuary Program.” Even so, he continued, “During the sanctuary designation process, the Council will be given the first opportunity to develop draft fishing regulations for the NWHI.”

Because implementation of the council’s plan dealing with the Northwestern Hawaiian Islands would conflict with, or duplicate, the conservation measures in the reserve operation plan, McInnis said, he was disapproving the council’s plans for managing coral-reef resources in that area.

Farm made little effort to hide his disappointment when he responded to McInnis on June 21. “We believe this [partial] approval to be short sighted and motivated by political expediency, rather than selecting the option that best regulates coral reef fishing in the NWHI. Nothing in the 25 years of Council stewardship, which has maintained the NWHI reefs in pristine condition, suggests the need to transfer this custody to the National Ocean Service.”

With the reserve’s boundary extending roughly 50 miles from emergent land, while the council’s jurisdiction extends 200 miles, Farm wanted to know if McInnis’ rejection of the council’s management plan “means that the authority of the reserve now extends to the 200 [nautical mile] outer boundary of EEZ, beyond the 50 nm reserve boundary as specified in the Executive Orders.”

One of the most serious disputes between the council’s proposed management regimes and that of the reserve concerns the Northwestern Hawaiian Islands’ lobster fishery, in which about half a dozen Honolulu-based vessels hold permits. The Clinton EO specified that the level of fishing authorized in the reserve would be capped at the level exerted in the previous year. The council has made an issue of the interpretation of what this means, especially for the lobster fishery, and Farm repeated that concern in his letter: “Is the fishing year the 365-day period prior to the date of the Executive Order (December 6, 2000), or simply the previous calendar year (1999)? This is crucial to the continuity of the NWHI lobster fishery, as the selection of the calendar year will cap the harvest level at 224,500 lobsters, as opposed to a complete fishery closure if the other alternative is selected.” Because of apparent overfishing of lobsters, the lobster fishery was closed for 2000 and has remained close in years since.

Lack of Full Disclosure

The Environmental Protection Agency weighed in with its concerns in a June 10 letter to Charles Karnella, head of NMFS Pacific Island Area Office. Although the EPA had reviewed the draft EIS and had indicated it had no objections, “Subsequent to providing these comments,” wrote Lisa Hanf, manager of the region’s Federal Activities Office, “it came to our attention that: 1) elements of the proposed FMP may conflict” with the executive orders establishing the reserve, “and 2) there is a significant unresolved conflict between the proposed FMP and existing management practices in several National Wildlife RefugesÉ We have environmental concerns about these issues, and believe that they should have been thoroughly disclosed and evaluated in the DEIS [draft environmental impact statement] since they are highly relevant to this decision-making process.”

Some of the conflicts were resolved during inter-agency conference calls in late 2001, Hanf noted. “However,” she wrote, “the FEIS continues to lack a comprehensive comparison of the management systems, the full disclosure of the environmental consequences of the no-action alternative and the preferred alternative, and a plan or description for resolving interagency conflicts.”

The final environmental impact statement portrays the area’s natural resources “as unmanaged or unprotected,” Hanf wrote. “In fact,” she continued, “both the National Wildlife Refuges and the Ecosystem Reserve currently limit commercial and recreational fishing in some areas of the proposed FMP to a greater extent than the FMP would. This is not clearly reflected in the FEIS.”

The EPA “strongly recommends that NMFS prepare a supplemental information document to address these issues,” she continued, including maps that superimpose the boundaries of the areas under jurisdiction of the different agencies. “Furthermore, NMFS should clarify how the FMP will be implemented in light of jurisdiction and management conflicts, and the steps NMFS is taking to resolve these conflicts.”

According to Shanna Draheim of the Federal Activities Office, the EPA had not received a response to the letter as of mid-July.

A Moot Point?

With the exclusion of the Northwestern Hawaiian Islands from the council’s coral reef management plan, it might appear that the questions raised by the EPA are moot. However, the approved portions of the Coral Reef Ecosystem Fishery Management Plan include other areas of disputed jurisdiction, such as the waters off Fish and Wildlife Service refuges at Johnston Atoll and other Pacific Remote Island Areas and off Rose Atoll, in American Samoa.

Karnella of NMFS’ Honolulu office indicated to Environment Hawai`i that the EPA’s concerns had been addressed in an agreement worked out with the Fish and Wildlife Service. “I believe that the Fish and Wildlife Service refuges office was concerned that the fishery management plan would allow fishing to occur in areas where it might have been prohibited by the rules of the refuge,” he said.

“We have inserted language into the decision memo” – the formal document accepting the fishery management plan – “and will insert appropriate language into the proposed rule indicating that the fishery management plan cannot and will not allow fishing where it is otherwise not allowed in a lawfully designated refuge in which fishing has been prohibited through some legal process.”

Draheim indicated that regardless of any inter-agency agreement, the fact remained that the final EIS did not fully disclose all the issues it was supposed to, under rules set forth by the federal Council on Environmental Quality.

“It’s a matter of disclosure, of the opportunity for public involvement,” she told Environment Hawai`i. Even if side agreements between the Fish and Wildlife Service and NMFS leave each of those parties satisfied, “the EPA still has concerns,” she said.

Too lax? Or too restrictive? That’s the question relating to terms of a permit allowing fishing experiments for swordfish and tuna that has been filed in federal court in Honolulu. The experiments, involving tests of new longline gear and fishing methods, are intended to pave the way for the eventual resumption of the now-banned swordfish fishery by showing how it can be done with a reduced likelihood of catching turtles. But in the process of conducting the experiments, inevitably more turtles will be killed and injured than if the present ban were kept intact, argue the three conservation groups who have brought the challenge.

The National Marine Fisheries Service’s Office of Protected Species issued the permit to the Honolulu NMFS laboratory in late January. A few days later, NMFS issued the final environmental assessment required under the National Environmental Policy Act. In the three years of fishing experiments authorized, some 44 critically endangered leatherback turtles are expected to be caught, with 15 of those likely to be killed or mortally injured by the hooking. More than 230 loggerhead turtles, federally listed as threatened, may be caught under the permit, including 87 that die.

For the Western Pacific Regional Fishery Management Council, the federal agency that advises NMFS on fishing in U.S. waters of the Western Pacific, the permit is too restrictive. Most members harshly criticized permit terms at the council’s most recent meeting, held in American Samoa at the end of June. Paul Dalzell, a biologist with the council, explained that NMFS had sought permission for experiments that would require about 1300 longline sets for the first year, but were restricted under the permit to around 300 sets. (A “set” involves putting into the water a main line, which can be up to 50 miles long, to which are attached branch lines, or gangions, each of which is 35 to 50 feet long. Baited hooks are placed on the end of each branch line. Up to 2,000 baited hooks can be placed in the water on each set.)

Nor did the permit satisfy conservation groups, three of which took NMFS to federal court once again in late June, claiming that the permit violates the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedures Act. The June lawsuit is only the most recent of several that have been filed against NMFS relating to its management of Western Pacific stocks. The first of those lawsuits resulted in effectively banning the swordfish fishery because of the relatively high rates of accidental catch – or bycatch – of turtles.

Finally, the terms and conditions of the research permit have left Honolulu laboratory researchers frustrated. In their original permit application, they had sought to test three different approaches to reducing turtle interactions, but the Office of Protected Resources, which issues permits for “takes” of endangered marine species, allowed them to test just two. The third was put on hold in light of similar experiments being conducted by NMFS in the North Atlantic.

‘Recommended’ Action

The application and issuance of the permit grew out of a biological opinion that NMFS released March 29, 2001, on the impacts of the Hawai`i longline fishery. Following instructions issued in November 1999 by Judge David A. Ezra, who presided over the litigation challenging that fishery, the biological opinion contained a conservation recommendation that advised NMFS to “research modifications to existing gear that (1) reduce the likelihood of gear interactions and (2) dramatically reduce the immediate and/or delayed mortality rates of captured turtles.” (Recently, NMFS withdrew that biological opinion and is preparing a new one. Tentatively scheduled for release in November, it is generally expected to present a more optimistic picture of the health of turtle populations than was depicted in the previous biological opinion.)

The Honolulu lab applied for the permit (allowed under Section 10 of the Endangered Species Act) in May 2001. Three types of experiments were proposed:

“Gear modification:” would test the effects of modifying gear by dying bait blue and removing branch lines closest to floats. This experiment was estimated annually to take 12 leatherbacks, with four killed; 65 loggerheads, with 24 killed; 6 olive ridleys, with two killed; and four green turtles, with one killed.

“Stealth” gear and deep-set daytime fishing: The first of these involves deploying gear camouflaged to make it less visible to turtles. Floats, for example, would be painted dark on the water side, flashy metal gear would be painted dark, and lines would be dark-colored instead of the light color that is customary. The deep-set daytime fishing experiment sets lines for swordfish deep in the daytime rather than shallow at night. The purpose of this experiment, the Honolulu researchers said, was not so much to see the impact on sea turtles as it was to compare the effectiveness of these innovations to swordfish and tuna catch rates (CPUE, for catch-per-unit-effort) obtained when fishing normally. These experiments, to run just one year, were estimated to take two leatherbacks, with one killed; eight loggerheads, with three killed; two olive ridley, with one killed, and one green (killed).

Tests of hook timers and hook types made up the third set of experimental fishing trips. The hook timers would measure “trends in the time and depth of sea turtle captures,” in hopes of revealing “particular time intervals or depths of longline operations for which sea turtles are most vulnerable.” The experiments with circle hooks, instead of standard “J” hooks, would attempt to determine if injury to turtles could be reduced with this substitution. Estimated turtle takes for this: 15 loggerheads a year, with six deaths; three leatherbacks, with one death; two olive ridleys, with one death, and one green (killed).

All vessels involved in the experiments would be commercial fishing vessels contracted by NMFS. Proceeds from fish caught are allowed to be kept by the vessel owners, to reduce the government’s out-of-pocket costs for the experiment, which has been estimated to be as much as $3 million.

When the permit was issued January 25, 2001, the Office of Protected Species allowed the Honolulu laboratory to undertake initially the second and third of these experiments. The testing of gear modification was made contingent on an evaluation by the head of NMFS of results from similar tests being conducted in the Atlantic.

Early Results Mike Laurs, head of the NMFS Honolulu laboratory and the person identified as principal investigator on the permit, told Environment Hawai`i that as of mid-July, most of the fishing done under the permit for the first year had been completed.

The permit requires fishing to be completed either by the end of July or when there has been a “lethal take” of one leatherback or four loggerheads by the vessels involved in the experiments, Laurs explained. A “lethal take” occurs whenever a turtle is seen to be dead by a NMFS observer (required to be on board all vessels), or when a turtle death is deemed to have occurred based on a statistical projection that 27 percent of the turtles caught and released alive will eventually die as a result of the hooking or entanglement. In other words, if four leatherbacks were caught, the experiments would be deemed to have crossed the “lethal take” threshold, even if all were released alive and apparently unharmed, and the research fishing would come to a halt until such time as NMFS headquarters could re-evaluate the impacts on the affected turtle population.

According to Laurs, that statistical projection, which is to be applied to all species of turtles, is probably far too conservative. “The death rate [from entanglement and hooking] depends largely on the kind of turtle caught,” he said. For example, he continued, leatherbacks are usually hooked superficially; if the line is cut and they appear uninjured, they’ll usually be fine, making that 27 percent projected mortality rate far too conservative. On the other hand, he continued, “loggerheads take the bait – seriously. So you may have an issue” with their post-hooking mortality rate.

As to the scientific validity of the 27 percent figure, “it came out of a compromise committee in Washington,” Laurs said, suggesting it is more a political artifact than a reflection of any actual death rate.

This year, he said, seven Honolulu longliners were engaged in the experiments. All totaled, they hooked two turtles – a leatherback and a loggerhead. Both were released with slight or no injuries, Laurs said.

The laboratory’s report on this season’s experiments is due at NMFS headquarters on September 30. If all goes well, Laurs hopes to start the second season of experiments by December 1, he said, which – if NMFS headquarters approves – might include this time the proposed experiments on gear modification.

A ‘Trojan Horse’

Before that can happen, the National Marine Fisheries Service must respond to the lawsuit challenging the research permit authorizing the fishing experiments. The suit was filed June 27 by the Ocean Conservancy (formerly the Center for Marine Conservation), Turtle Island Restoration Network, and the Center for Biological Diversity. Representing the three groups is the Mid-Pacific office of Earthjustice Legal Defense Fund, with lead attorney Paul Achitoff.

In an interview with Environment Hawai`i, Achitoff portrayed the entire research project as little more than a “Trojan horse” whose chief – indeed, sole – purpose is to allow Honolulu-based longliners to continue fishing for swordfish.

“My question for NMFS,” Achitoff said, “is, if they really feel they need to test any of these methods, what scientific basis is there for concluding that it is not feasible to test them in the existing longline fisheries? Why can’t they take circle hooks to any longline fleets over which NMFS has control? It’s in industry’s best interests to find turtle-safe gear. Why can’t NMFS say, ‘Industry, look, you want to find out if circle hooks are a silver bullet, fine; put circle hooks on half your gear and let us know.’

“The only reason they’re not doing it that way is that it won’t allow swordfish longliners back in the water. And I think that’s the whole reason for this thing. The whole thing is a Trojan horse.”

Achitoff says there is no need for the gear modification tests, which would result in the highest take of turtles, to be conducted in the Pacific Ocean at all, when similar tests have been conducted in the Atlantic swordfish fishery. “Why under any scenario would it be necessary or in the turtles’ interest to test those minor gear modifications in the PacificÉ If it’s not working in the Atlantic, why kill more turtles in the Pacific? If it is working in the Atlantic, why kill more turtles in the Pacific?” he asked. The same question was asked by NMFS’ Office of Protected Resources, he said. “The Honolulu lab’s only response was, ‘It is believed that conditions in the Pacific are different.’ Period. That’s the entire explanation for having a Pacific experimental fishery in addition to the Atlantic one. They haven’t explained that and they haven’t explained why they can’t test it in other longline fisheries.”

Laurs was asked why the Honolulu lab felt it needed to conduct its own tests rather than rely on data obtained from the Atlantic experiments on gear modification. First, he said, there was a difference in the gear itself. “In the Atlantic, they moved the branch lines to a distance of 20 fathoms from the float, which is about the same distance as the Hawai`i longline fleet now uses,” he said. “Our experiment proposes a distance of 40 fathoms. The reason for that was, we analyzed observer data from sets where turtles were taken, and found a higher proportion of turtles was taken on branch lines in the vicinity of floats. On lines more than 40 fathoms distant, there were much lower takes.”

Blue-dyed bait was also tried in the Atlantic experiments and “did not work out well,” Laurs said. But it needs to be tried again in the Pacific, he continued, because the ecosystem is so very different here from that in the Atlantic:

“In the Atlantic, you’re operating in an ecosystem that is relatively close to shore and over shallow areas, such as the Grand Banks and the Flemish Cap. In the Pacific, we have very deep-water ecosystems, including one of them marked by the subtropical convergence zone in the north, and another further south, much different, that’s bounded by the North Equatorial Current. These ecosystems are so different, it doesn’t surprise me that there would be differences in response to the experiments.”

— Patricia Tummons

Volume 13, Number 2 August 2002