It smacks a lot more of ‘egosystem’ than ecosystem management,” Rob Shal-lenberger says of the jurisdictional fights that have plagued the Northwestern Hawaiian Islands over the years. Shallenberger, retired from the U.S. Fish and Wildlife Service and now working with The Nature Conservancy, is all too familiar with the long history of conflict over regulations in the area. He shared his opinion on the history of management in the NWHI at the Third Northwestern Hawaiian Islands Scientific Symposium, held last month in Honolulu.
“The fact that there are several agencies that share jurisdiction over NWHI resources has, at times, been an impediment, but it could prove to be a critically important asset. Effective collaboration enables agencies to pool their authorities, their money and their staff expertise to achieve common objectives,” he wrote in his report to the symposium. “It remains to be seen whether or not the Sanctuary proposal can provide the framework necessary for this level of collaboration.”
It has been five years since former President Clinton signed the executive orders igniting the process of designating the remote, uninhabited part of the Hawaiian archipelago as a National Marine Sanctuary. In that time, about 100 meetings have been held, scores of letters exchanged between agency heads, and every kind of working group imaginable has been established. Still, the rifts remain.
A draft Memorandum of Agreement between the state of Hawai’i, the U.S. Department of Interior and the U.S. Department of Commerce on how the three plan to address the jurisdictions of one another has been sitting – unsigned – in the Department of Interior’s Washington office for two years. Ed Lindelof, senior policy analyst for the National Marine Sanctuary Program, says that all of the agencies involved are “already acting as if it’s signed,” with regular interagency meetings being held. A signed agreement, however, would be “nice to have.”
Don Palawski of the U.S. Fish and Wildlife Service said at a recent Marine Mammal Commission meeting that once all the agencies understand their different rules and where the conflicts are, his agency will be “better able to sign off.”
The most recent and pressing conflict concerns fishing regulations for the proposed NWHI National Marine Sanctuary. Who will pen them, what they will look like, and when they will be completed is anyone’s guess, as the National Marine Sanctuary Program’s NWHI Coral Reef Ecosystem Reserve program and the Western Pacific Regional Fishery Management Council struggle to advance their respective – and at times vastly conflicting – agendas.
On September 20, 2004, the reserve/sanctuary program formally issued its Advice and Recommendations on Development of Draft Fishing Regulations. Under the National Marine Sanctuaries Act, the council is to get first crack at proposing rules for the sanctuary. If the council fails to devise adequate regulations within 120 days of receiving the Advice and Recommendations document – that is, by January 18 – the Secretary of Commerce, who has final authority over both the council and the sanctuary program, will draft regulations.
Those regulations will be analyzed in a draft environmental impact statement (DEIS) for the sanctuary. Lindelof says that the program expects to complete its DEIS in late summer or early fall 2005, and the final EIS in early 2006.
Unhappy with what it calls the “prescriptive” framework provided in the sanctuary’s “Advice and Recommendations,” the fishery council has asked the sanctuary program for permission to revise the proposed sanctuary’s goals and objectives. In addition, they’re seeking a time extension that would give the council until April 4, 2005 to have a working group (including representatives from the state, the Fish and Wildlife Service, the fishing community, the council, the sanctuary program, and the National Marine Fisheries Service) come up with sanctuary regulations or, failing that, to have the council complete its own draft environmental impact statement for sanctuary regulations.
As of mid-November, the National Marine Sanctuary Program had not yet taken an official position on the council’s request for a time extension. Lindelof says that in the past, the sanctuary program has given other fishery management councils more than 120 days, and says that an extension in this case would not adversely affect the designation schedule.
Advice
On October 14, Aulani Wilhelm, coordinator for the NWHI Coral Reef Ecosystem Reserve, presented the council with swift, dense power point presentation on her office’s rationale behind the “Advice and Recommendations” document.
The document covers a number of topics. First, it sets forth the proposed sanctuary’s seven management goals, each with several objectives, based on advice from the Reserve Advisory Council, government agencies and programs, and information on the reserve’s resources.
The goals are to: protect biological communities; provide for coordinated, cross-jurisdictional management; control negative human impacts; increase public awareness about the proposed sanctuary’s marine, cultural, and maritime resources; support Native Hawaiian practices; support long-term research and monitoring; and control fishing activity so that it does not affect ecosystem integrity or protected species.
The document also selects a fishing regime, chosen from seven possibilities, under which fishing regulations will be created. The sanctuary program selected Fishing Alternative 3, a regime it came up with on its own. In the executive summary, this alternative is described as being the one “most consistent with the National Marine Sanctuaries Act and the Goals and Objectives Statement for the proposed sanctuary.”
Among the alternatives rejected were ones submitted by both the Western Pacific Fishery Management Council and the Reserve Advisory Council. The Advice document states that the fishery council’s alternative would protect only 11 percent of the shallow-water reef habitat and 6 percent of the habitat found from land to a depth of 100 fathoms, while the RAC alternative would protect “100 percent of the ecological parameters” but would also impact 100 percent of the fisheries. So the sanctuary program chose something in between.
Under Alternative 3, pelagic longlining, precious coral fishing, coral reef species fishing, and non-subsistence crustacean fishing would be prohibited throughout the sanctuary, “as appropriate.” Commercial bottomfishing, commercial pelagic trolling, recreational catch-and-keep fishing, recreational catch-and-release fishing, sustenance fishing, and Native Hawaiian cultural and subsistence uses would be allowed by permit, but restricted through zoning “and other means.”
Goal 7
Most, if not all, of the conflict can be traced to Goal 7 in the Advice and Recommendations document. That goal is to: “Maintain ecosystem integrity by limiting and controlling fishing activities using an ecosystem-based management approach. Maximize ecosystem protection while minimizing adverse socioeconomic impacts. Limit fishing activities to areas that minimize or prevent interactions with corals, seabirds, endangered Hawaiian monk seals, and other protected wildlife, or that do not threaten the natural character or biological integrity of any ecosystem of the region.”
For the fishery council the objectives of Goal 7 were too restrictive. For the Reserve Advisory Council, they were too liberal.
The RAC – which has only one commercial fishing representative as opposed to three representatives from the Native Hawaiian community, three researchers, and three from the conservation community – had recommended a blanket prohibition on non-subsistence crustacean fishing, precious coral fishing, coral and live rock harvesting. It also sought to phase out bottomfishing within a year of designation. Some members of the Reserve Advisory Council, which had come up with the initial language for the sanctuary’s goals and objectives, were shocked when they found that sanctuary program had softened the RAC’s strict prohibitions.
The objectives under Goal 7 would prohibit lobster and coral fishing and live rock harvesting “as appropriate.” Those two words, RAC member Bill Gilmartin said at a meeting of the Marine Mammal Commission in October, create “a pretty large loophole… and leave an opening for Wespac [the fishery council] to step in and suggest opening fisheries the RAC doesn’t want.” Gilmartin also disagreed with the sanctuary program’s decision to allow bottomfishing to continue outside “sensitive habitats.”
On the opposite end of the spectrum, the fishery council felt the objectives of Goal 7 discourage the expansion of fisheries.
“The Objectives of Goal 7 read as a very specific regulatory language which restricts flexibility of management alternatives,” states a fishery council Action Memorandum summarizing its vote on the Advice document. More to the point, the objectives would make the fishery council’s dreams of reopening the lobster fishery and starting a precious coral fishery in the NWHI a lot harder to reach.
Instead of working within the sanctuary’s parameters, the fishery council offered to revise Goal 7 and its objectives. Its alternative to Goal 7 would be to “Maintain ecosystem integrity by applying ecosystem-based management and research principles to fishing activities. Sustain ecosystem protection while minimizing adverse socioeconomic impacts.”
The proposed objectives of the fishery council include the following:
Although the sanctuary program had not responded by press time to the fishery council’s proposal, Wilhelm and RAC member William Aila told the council before its vote that the Advice document’s Goals and Objectives were not likely to change.
“We are in uncharted waters. Wespac has never co-managed an area this large,” Aila said, and recommended that instead of fighting them, the fishery council use the policies handed down from NOAA as its “steering paddle.”
Alternative 3
“Alternative 3 will put us five out of business. It won’t allow bottomfishing to continue over time,” said Gary Dill, one of the operators in the bottomfish fishery with a NMFS permit to fish in the Mau Zone. Under the fishery council’s bottomfish management plan, federal waters surrounding the Northwestern Hawaiian Islands are divided into two zones. The Mau Zone is closest to the Main Hawaiian Islands, extending between 161*20′ West longitude and 165* W. The Ho`omalu Zone runs from 165* W to the northwesternmost limit of federal waters, past Kure Atoll.
There are nine bottomfishing vessels permitted to fish in the NWHI, four in the Ho’omalu zone and five in the Mau zone. The executive orders that established the coral reef ecosystem reserve capped all federal fishing permits and levels of fishing effort and take at the level that existed in December 2000. While fishing caps have not yet been set under the executive order, Dill objected to those as well. Fishing caps “in and of themselves will kill us,” Dill said at the fishery council’s October meeting. “Before they kill us, they’ll kill the stocks… Quotas are probably the most evil thing you could do to this fishery.”
Alternative 3 would allow commercial fishing in waters surrounding Nihoa and Necker Islands beyond the Reserve Preservation Area, which extends out from the three-mile limit of state waters to a depth of 100 fathoms. Fishing would also be allowed from Gardner Pinnacles northwest to Pioneer Bank. Waters around and northwest of Lisianki and between 165* W and 167*30′ West longitude (which includes French Frigate Shoals, St. Rogatien Bank, Brooks Bank, and other Reserve Preservation Areas) would be closed to commercial fishing. (Of the 15 Reserve Preservation Areas, five are completely closed to fishing. In the remainder, some fishing is allowed.)
Bottomfishermen at the council’s October meeting complained that the closed areas include fishing spots that allow them to spread out their catch and not overfish any one area. The fishery council’s alternative, rejected by the Sanctuary Program, would have put an outright ban on fishing only in the areas out to 50 fathoms’ depth around French Frigate Shoals, Laysan Island, and Midway.
After discussions with the fishermen present, Wespac’s Jarad Makaiau offered a new approach at the October meeting. Because French Frigate Shoals are essential monk seal habitat, Makaiau said, “the fishermen are willing to give it up, even though it’s the fourth largest bottomfish catch area.” However, he added, fishermen want continued access to fish on the outlying banks of French Frigate Shoals.
The fishermen were also willing to give up everything northwest of 174* W longitude, which includes Pearl and Hermes, Midway, and Kure atolls. Kure and Midway are too far to fish, Makaiau said, but the unnamed bank just northwest of Lisianski is another spot that the fishermen want kept open.
Sanctuary representatives at the fishery council’s meeting did not comment on the new proposal.
Council Action
On October 15, Wespac voted to adopt its revised Goal 7 and related objectives, and to establish a working group, which is to include representatives from the Sanctuary Program, NMFS, the state, the Fish and Wildlife Service, the fishery council, and the fishing community. The task for this group would be to “determine shared goals and objectives for fishing in the NWHI Sanctuary, to develop a ‘working group preferred alternative,’ and to develop alternative management regimes for the proposed sanctuary that will be analyzed before the March 2005 Council meeting.”
The fishery council also recommended an analysis of the costs and benefits and impacts on the human environment of a range of alternative fishery management regimes (preferably in a draft EIS) in time for the March meeting. Those alternatives will include those presented in the reserve’s advice to the council.
If the working group can’t come to any agreement, the council voted to have its staff to complete the DEIS process in compliance with the Magnuson-Stevens Act, which governs the regulation of fishing in federal waters, and to ensure that the public comment period ends by February 18, 2005.
NMFS’ Pacific Islands Regional Office administrator Bill Robinson and Yvonne Izu, the state government representative on the council, abstained from the council vote. Robinson said that the National Oceanic and Atmospheric Administration, under which NMFS, the fishery council, and the Sanctuary Program are housed, would not look favorably on the council developing an environmental impact statement for sanctuary regulations under Magnuson-Stevens when NOAA is already in the process of doing one under the National Marine Sanctuaries Act.
Even so, Robinson said, he shared the council’s concerns that the sanctuary’s Advice document was not as scientifically grounded as it should be.
Robinson’s concerns were amplified in withering comments from the fishery council’s Scientific and Statistical Committee. The Advice document “does not provide credible scientific evidence that fishing activities managed under current MSA regulations are detrimental to the ‘ecological integrity of the NWHI,” the committee reported to the council. A screening process used to assess activities by the Sanctuary Program’s contractors was “not applied objectively or quantitatively,” the SSC asserted, terms were often undefined, citations were not provided for statements asserted as fact, and, finally, the Sanctuary Program’s requirement that commercial fisheries prove that they do not affect ecosystem integrity “is not embodied or required” in the Sanctuaries Act. “Further,” the SSC noted, “this requirement can never be realized unless there is a definition of ecosystem/ecological integrity and a quantitative threshold for the level of harm.”
Robinson also expressed a concern that fishing caps on bottomfishers might increase bycatch of other fish species that get caught on their lines. He agreed with the council that the Sanctuary Program’s assessment of the socioeconomic impacts of a restricted bottomfish fishery ignored potential social impacts.
Ticking Clock
If or how the sanctuary program will incorporate the fishery council’s concerns into its management proposal remains to be seen. The council’s new working group met in late October, but no decisions have been made. Lindelof says, “The ball is in Wespac’s court…So folks with the environmental community who want their voices heard need to work with Wespac now.”
Although Wespac may choose to initiate a draft environmental impact statement for proposed rules under the Magnuson-Stevens Act, Lindelof doesn’t believe Wespac has the authority. Like Robinson, he doubts NOAA will support two EISs for one issue. While his office is “very puzzled” by Wespac’s intentions with regard to a DEIS, Lindelof says that his office might analyze what comes out of that process as one of the alternatives in its own EIS.
As the clock ticks for the council, it does so for the sanctuary program, as well.
Funding for the reserve has been authorized through September 2005. NOAA’s Draft Final Reserve Operations Plan anticipates that it will cost an average of $7,607,000 a year to manage the reserve for the next five years. The executive orders signed by former President Bill Clinton in December 1999 and January 2000 establishing the reserve stipulate that if the reserve was not made a National Marine Sanctuary by October 2005, the Secretary of Commerce would perform a review of the reserve’s management to determine its future.
Of the NWHI Coral Reef Ecosystem Reserve’s four primary activities, sanctuary designation is the reserve’s primary focus right now, said reserve research coordinator Randy Kozaki, speaking at the Marine Mammal Commission meeting late October. The program is months behind schedule.
In the Reserve’s Draft Final Reserve Operations Plan issued last March, public review of the DEIS was expected to be completed by November. In the “Advice and Recommendations” document, the DEIS release was to occur next spring. Now, Lindelof says it will be late summer/early fall 2005, and that’s including an extension for Wespac to April 4.
The fishery council has asked the Sanctuary Program that if the proposed Goals and Objectives for the sanctuary are changed “based on public comments or for other reasons,” the fisheries council be given an additional 120 days to develop draft regulations. But given the long public process that went into creating those goals, Lindelof says a goal change is not likely to happen.
If Wespac’s proposal fails to meet sanctuary policies and principles Lindelof says that final proposed regulations may be a modification of the sample regulations in the advice document, maybe a modification of Wespac’s proposed rules, or some combination of both.
Although the sanctuary program admits it’s not likely to meet the October 2005 deadline for designation, Lindelof does not expect Congress will pull the plug on the reserve’s funding.
“We plan to work with NOAA and the Department of Commerce and Congress staff to have continued funding through the designation process,” he says, adding that the Florida Keys sanctuary was supposed to have been done in 18 months, and ended up taking five years. He stresses that the sanctuary program is taking its deadlines very seriously, but adds that Congress’ intent is “to see sanctuary designation – or not – by FY 05. [Designation] will happen shortly thereafter and we can make the case that we’re making good progress. No one wants us to shortcut the process,” Lindelof says. “It’s important to make voices heard.”
[b]For Further Reading:[/b] The “Advice and Recommendations” document, the “Draft Final Reserve Operations Plan,” and other documents are available on the internet at: [url]http://www.hawaiireef.noaa.gov/documents/welcome.html[/url]
— Teresa Dawson
Volume 15, Number 6 December 2004