After trying for more than two years to lift restrictions protecting federally listed sea turtles, the Hawai`i longline industry was dealt a setback on January 31, when the U.S. Department of Justice and three conservation groups entered into a settlement agreement requiring the National Marine Fisheries Service to rescind its 2009 decision to increase the annual allowable take of loggerheads from 17 to 46.
As a result, the Hawai`i shallow-set longline fishery is now in danger of closing this year, having hooked, or “taken,” 11 threatened loggerhead sea turtles as of March 15. The ten boats that make up the current fleet, which targets swordfish, bring in about 20,000 fish a year.
The settlement, filed in U.S. District Court in Honolulu, ended litigation initiated December 16, 2009 by the Center for Biological Diversity, KAHEA: the Hawaiian-Environmental Alliance, and the Turtle Island Restoration Network in response to the NMFS’s rule, published less than a week earlier, instituting a looser set of restrictions on the Hawai`i swordfishing fleet.
In addition to nearly tripling the number of loggerheads that could be hooked in a year, the rule lifted the annual limit on the number of hooks set and allowed take levels to be calculated on a three-year basis.
To the groups, it just didn’t make sense for the NMFS to allow the killing of more loggerheads at the same time the agency was considering uplisting them from threatened to endangered.
But to at least one industry representative, who also is a member and former chair of the Western Pacific Fishery Management Council, the science behind the 2009 NMFS rule was perfectly sound. And at the council’s meeting last month in American Samoa, he demanded an explanation of why, in his opinion, the agency caved.
Disputes between conservationists and the NMFS over the fleet’s impact on sea turtle populations have been going on since the late 1990s, when a lawsuit filed by the Center for Marine Conservation and the Turtle Island Restoration Network resulted in Hawai`i-based longliners being banned temporarily from their grounds in the Northern Pacific.
Before the closure, the fleet, which deploys dozens of miles of line and thousands of hooks at a time, was taking hundreds of loggerheads and endangered leatherback sea turtles every year, as well as other species of turtles, seabirds, and cetaceans.
By 2004, longline fishing in the Northern Pacific had resumed under new rules, including an annual limit of 2,120 shallow-set hooks, and annual capture caps of 17 and 16 for loggerheads and leatherbacks, respectively. It was also limited to killing 3 loggerheads and two leatherbacks a year.
In March 2006, after only three months of fishing, the fleet had reached its allowable take of loggerheads and had to shut down for the rest of the year.
The following February, the Hawai`i Longline Association sought relief from the NMFS, asking the agency to lift its effort and take limits because turtle capture rates had declined by 89 percent from pre-closure rates, with the number of “deeply hooked” turtles dropping as well. The HLA also asked for the annual caps to be changed to a three-year cap.
Despite protests from conservation groups and a petition by two of them to list the North Pacific population of loggerheads as endangered, the NMFS and the Western Pacific Fishery Management Council agreed to conduct a supplemental environmental impact statement analyzing HLA’s proposal as well as time/area closures.
The NMFS’s Pacific Island Fisheries Science Center later determined that a take level of 46 loggerheads and 19 leatherbacks would result in the deaths of about three adult females of each species, which was not, as the center’s Melissa Snover informed the council in 2008, significantly different from the 2004 kill levels set by the NMFS. She did, however, advise the council to use caution when interpreting her results, because her analysis incorrectly assumed that nesting trends were representative of total population trends.
In a 5-4-1 vote, the council voted to recommend that the NMFS lift limits on fishing effort, raise the caps for loggerheads from 17 to 46 and those for leatherbacks from 16 to 19, and to apply those limits on a three-year basis. In 2009, the NMFS agreed with the council’s recommendations, except those regarding leatherbacks.
The two mainland groups that petitioned the NMFS to uplist the North Pacific loggerheads, joined by the local organization, KAHEA, immediately filed a complaint against the agency, arguing that in publishing its rule, it violated the Endangered Species Act, the Migratory Bird Treaty Act, the Marine Mammal Protection Act, the Magnuson-Stevens Fishery Conservation and Management Act, and the Administrative Procedure Act.
The plaintiffs, represented by Earthjustice, noted in their June 2010 amended complaint that the 2008 biological opinion (BiOp) prepared by the NMFS for the longline fishery had stated that the North Pacific loggerheads “faced an over 83 percent likelihood of becoming quasi-extinct within the next three loggerhead generations. … Yet the rule nearly triples the number of loggerhead sea turtles the fishery is authorized to catch.”
The complaint alleged that the BiOp was not based on the best scientific and commercial data available, failed to address the impacts of the proposed take on species recovery, and also failed to consider the rule’s impact given the environmental baseline and cumulative effects.
In the midst of the litigation, the NMFS published a proposed rule on March 16, 2010, to list the North Pacific loggerhead turtle as endangered. And by October, the plaintiffs and the NMFS were ready to settle. They filed a joint motion to enter a stipulated injunction, or settlement, as an order of the court.
Although the Hawai`i Longline Association, which had intervened in the case, opposed the motion, on January 31, U.S. District Judge David Ezra approved it.
Under the settlement, the NMFS must redo the portions of its 2008 biological opinion that relate to loggerhead and leatherback turtles and may not increase their allowable take until after a new BiOp is completed. The BiOp and a new incidental take statement for the fishery must be completed no later than 135 days after the NMFS’s final determination on its proposed listing of nine population segments of loggerheads.
In exchange for the revised BiOp, the plaintiffs allowed all of their other claims regarding the rule’s effects on seabirds and whales, among other things, to be dismissed with prejudice.
(On March 22, the NMFS published a notice in the Federal Register announcing it was proposing to extend by six months — to September 16 — the deadline for making a final determination on the loggerhead listing. According to the Federal Register notice, the extension is needed to clear up the status of the Northwest Atlantic Ocean loggerhead “distinct population segment,” or DPS. “[I]n preparing the final rule, there was substantial disagreement regarding the interpretation of the existing data on status and trends and its relevance to the assessment of extinction risk to the Northwest Atlantic Ocean DPS,” the Federal Register notice stated. “There was also considerable disagreement regarding the magnitude and immediacy of the fisheries bycatch threat and measures to reduce this threat to the Northwest Atlantic Ocean DPS. The Services [NMFS and U.S. Fish and Wildlife Service] need to fully evaluate and assess the best scientific and commercial data available and ensure consistent interpretation of data and application of statutory standards for all of the nine proposed DPSs.”)
Last month, at the council’s meeting in American Samoa, National Oceanic and Atmospheric Administration counsel Fred Tucher presented a summary of the settlement.
Clearly annoyed that the council’s work appeared to have
been brushed aside in the settlement process, council member and HLA president Sean Martin said he thought the council deserved an explanation from NMFS Pacific Islands Regional Office director Michael Tosatto and/or Tucher as to why “the best available science was abandoned.”
Also, because the council had little involvement in settlement negotiations, Martin asked what the role of the council might be in any future actions.
“The council was left behind,” he said.
Tucher replied that he had already discussed the matter with council executive director Kitty Simonds, informing her that the authority to settle lies with the U.S. Department of Justice, in consultation with the NMFS.
“I fully appreciate that the council worked on the [rule] amendment, but once it becomes law, the ability of the council to influence decisions is reduced,” he said.
The stipulated injunction does not address the issue of whether the best available science was used. It simply notes that the parties chose to settle all claims “to avoid the costs and uncertainties of litigation.”
Council member David Itano, a fisheries scientist, echoed Martin’s concerns.
“We get the feeling the agency sold the fishery down the creek,” he said, adding that should loggerhead takes approach 17, the NMFS will move to close the fishery. (By February, the fishery had taken four loggerheads. By the council’s meeting on March 7, the fishery had taken already nine, two more than was caught in all of last year.)
Tosatto said he fully recognized the impact the settlement has on the fishery.
He added that he did not have a date for when his agency would issue a final determination on the loggerhead listing proposal. (With the March 22 Federal Register notice, the new BiOp would now be due 135 days after September 16, or the end of January next year.)
The fact that Tosatto did not know when the NMFS would make its determination also concerned Martin. He said the industry worried that the NMFS would not make developing a new BiOp and incidental take statement a high priority, allowing the current restrictions to carry on indefinitely.
Tosatto assured Martin that fact that the NMFS has passed its deadline to rule on the status of loggerheads puts “some fire on our feet” to issue a new incidental take statement.
Martin said that if the best science available is not going to factor into decision-making, “the council needs to be told that.”
For Further Reading
More background on these issues is contained in the following articles, available at no charge to subscribers, at www.environment-hawaii.org Non-subscribers may purchase a 2-day archives pass for $10:
“Fishery Council Narrows Scope of Study on Expanded Longlining Effort,” November 2007;
“Fisheries Council Approves Proposal to Raise Caps on Turtle Interactions,” May 2008;
“Fishing Council Relaxes Turtle Limits, NMFS to Initiate New Biological Opinion,” August 2008;
“New Report Supports Lifting Annual Limit On Interactions between Loggerheads, Fishers,” December 2008.
* * *
Effects of Bigeye Closure
On Hawai`i Businesses
Last year, to prevent overfishing of stocks in the Western Pacific, the National Marine Fisheries Service closed the U.S. bigeye tuna longline fishery in late November, in accordance with limits set by the international Western and Central Pacific Fisheries Commission.
The U.S. catch limit of 3,763 metric tons was expected to be reached just before the holidays, when the demand for fresh tuna is especially high. However, U.S. boats with permits to fish in American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands could continue to fish under an exception designed to spur commercial fishing development in those territories.
So when the fishery was closed on November 22, eleven boats stopped fishing completely, while the rest either moved their effort 400 miles to the east, outside of the closure area, or, if they had an American Samoa permit, stayed in western waters just outside the U.S. 200-mile exclusive economic zone around Hawai`i.
What kinds of effects did the closure have on the local bigeye market?
Not much in terms of tonnage caught, but quality suffered and prices spiked, according to the Pacific Islands Fisheries Science Center’s Dawn Kotowicz and Laurie Richmond. Last month, the social scientists presented the council with the results of their investigation of the social impacts of the 2010 Hawai`i bigeye fishery closure.
For the most part, the fleet caught a good amount of fish, about $5.5 million worth in December, even though boats made fewer trips. The twelve boats that had American Samoa permits brought in about 528 metric tons.
The fish brought in by the entire bigeye fleet were generally smaller and of low and high quality, they found, adding that with few fish of average quality, some buyers at the Honolulu fish auction were not able to fill their orders.
Even so, they said that it did not appear that the closure caused many buyers to seek imports. Although they are still working to get data on profits, it appears the smaller boats benefitted from the higher fish prices, they added.
Kotowicz and Richmond also found that the fleet’s catch of non-target species, such as opah, increased.
After their presentation, council member Sean Martin noted that when the Western Pacific fishery closed, the quota had not actually been reached. Only 3,641 metric tons had been caught, and the difference between the quota and the catch – some 122 metric tons – represented about a million dollars worth of fish, according to Martin.
David Hamm, a NOAA fisheries scientist, explained that the NMFS projects when quotas will be hit using historical catch data. In this case, he said, fishermen changed their behavior, fishing less in the days before the fishery actually closed.
Martin said he hoped that the Western and Central Pacific Fisheries Commission would find a way to allow the industry to recapture the $1 million lost by the early closure.
* * *
With congressional earmarks banned this year, the Pacific Islands Fisheries Science Center is facing a loss of more than 30 percent of its normal operating budget, while at the same time, research demands are growing.
Center director Samuel Pooley told the Western Pacific Fishery Council last month that the center’s overall budget, aside from congressional directives, will dramatically decrease the number of days the center’s research vessels will spend at sea. The center’s “limpy, old” Townsend Cromwell, which normally spends about 240 days at sea, may under the current budget be at sea only 120 days, Pooley said, adding that it could be as few as 90 days at sea.
“What that number will be remains to be seen because we don’t know Congress’s budget for FY 2011,” Pooley told Environment Hawai`i . He says a shrinking NOAA budget together with a rising cost of operating ships are causing the agency to reduce the number of sea days allocated to each science center.
The PIFSC has proposed tying up smaller vessels to give the larger ones more time on the water and has canceled its biennial Northwestern Hawaiian Islands lobster cruise, Pooley told the council, adding that the cruise has provided the center with its longest ecosystem time series and was beginning to “bear fruit” regarding productivity in the NWHI.
For FY 2010, some 33 percent of the PIFSC’s $29.3 million budget comes from earmarks. Of the $9.7 million in “congressional directives” identified in the budget, nearly $2.6 million supported endangered Hawaiian monk seal research and $3.3 million was directed to sea turtles.
Even without earmarks, Pooley says, this year’s monk seal field camp cruise will proceed as planned. “It w
as our first priority,” he says. “We don’t do turtle cruises, so from a protected species standpoint, all of our sea days are covered.”
The lack of earmarks will, however, have an impact on basic field camp operations, he says, although how much of an impact is unclear.
“We don’t now how Congress will choose to do its budget. At the council, I was just trying to give people a heads-up of the impacts [and] most of it is going to be related to protected species,” he says.
* * *
Council Slams NMFS
For MCBI Contracts
“I think it’ll be fair. … The same as the tobacco industry’s report that cigarettes don’t cause cancer,” Paul Dalzell said of a report the Marine Conservation Biology Institute will be preparing for the National Marine Fisheries Service on the value of large marine protected areas.
Dalzell, senior scientist for the council, was aghast when NMFS Pacific Island Regional Office director Mike Tosatto announced at the council’s meeting last month that the report was one of three projects the agency had contracted the conservation group to do. A workshop on interactions between tuna and birds and a report on ecological resources in the Pacific Remote Island Areas were the other two.
“You’d be better off hiring ecological modelers,” Dalzell said. “Asking MCBI, an environmental advocacy group that has an expressed interest [in MPAs] reminds me about arguments made ten years ago about fishermen on the council — foxes in the hen coop.”
Dalzell noted that MCBI is the same institution that issued a report arguing that bottomfishers in the Northwestern Hawaiian Islands were ecologically overfishing. He said it was an act of supreme naivete by the NMFS to expect anything different.
Tosatto, well aware of MCBI’s past work and reputation, disagreed. He noted that, with regard to the organization’s NWHI bottomfishing assessment, “It was not that hard to refute that report.”
“I’m not naive,” he added. “I do expect them to do their best to paint large MPAs as a benefit.” However, he said, if MCBI produces a one-sided report, the NMFS will simply “move on” and get the other half of the story somewhere else.
Why go with MCBI? Because the organization is very interested in monuments and the Pacific Remote Islands Areas, Tosatto said. Despite its advocacy work, “I do expect them to produce a fair, professional report,” he said.
Council member David Itano, who was also skeptical of MCBI’s tuna-bird workshop, warned that even a scientifically invalid report can have an impact.
The debate over MCBI’s contracts with the NMFS came toward the end of long and heated discussions over petitions to list marine species in Guam, Hawai`i, and the CNMI as endangered, and to expand the Hawaiian Islands Humpback Whale Sanctuary to include a variety of marine mammals and other species.
Hearing that the NMFS had funded MCBI shocked council chair and Guam resident Manuel Duenas into a long tirade over what he saw as the agency’s oppression of local fishing rights.
“All I’m seeing from the agency is worse, worse, worse interaction with the community. … This whole exercise is a joke,” he said.
With regard to the recent efforts to expand MPAs and list more species as endangered, Duenas added that the environmental community probably thinks, “Maybe we can squeeze another $100,000 out of Pew and take half the Marianas,” referring to the foundation that has contributed significant funds towards the protection of marine areas.
At the very end of the meeting, the council voted to send a letter to the NMFS communicating the council’s concerns over the decision to provide federal funds “to an environmental advocacy organization that has provided questionable scientific reports related to the NWHI bottomfish fishery.”
The motion also noted that MCBI’s work for the NMFS on the Pacific Remote Island Areas “could have significant implications to the management of marine resources within council jurisdiction.”
The council asked the NMFS to describe the outcome of MCBI’s projects at the council’s June meeting.
Although the motion passed, Tosatto opposed it and Hawai`i’s Julie Leialoha abstained.
MCBI president Elliott Norse said he could not comment without seeing the council’s final letter to the NMFS.
— Teresa Dawson
Volume 21, Number 9 April 2011