What the National Marine Fisheries Service had proposed was simply unacceptable to Roger Dang, whose family’s longline vessels make up a significant portion of the Hawai‘i swordfish fleet.
He likened it to the NBA limiting LeBron James to just two technical fouls per season. If James hits that limit, “he’s out of the game, out of the season, and not getting paid,” Dang complained at a meeting of the Western Pacific Fishery Management Council last month. The council had convened the meeting to comment on the service’s new draft biological opinion (BiOp) for the fishery and make new recommendations for operating the fishery given the new information in the document.
With regard to the swordfish fleet, the “technical fouls” would be the incidental hooking of leatherback sea turtles, whose population of about 1,400 in the Western Pacific is declining at a rate of 5 percent per year, and “is at risk of falling to less than half of its current abundance in as few as three years,” the opinion states.
The swordfish fleet is one component of the commercial fishing industry in Hawai‘i, which consists of around 145 permitted longline vessels. Most of them fish exclusively for bigeye tuna, which requires that the hooks be set deep in the water column. However, some of them also are configured at times to target swordfish, which requires setting the hooks at shallower depths. This leads to the so-called shallow-set fishery interacting more frequently with sea turtles, including leatherback and loggerhead, both of which are endangered.
Siding with Dang and other representatives of the Hawai‘i Longline Association, the council rejected the service’s proposal to impose annual hard caps on individual vessels, in addition to the longstanding limits on turtle interactions for the entire fleet.
The council instead recommended that the service adopt a more forgiving scheme: force vessels that catch two leatherbacks in a single trip to return to port for a few days, but allow them to continue to fish for the rest of the year, or until the fleet-wide limit is reached.
With regard to loggerhead sea turtles, the council stuck with a recommendation it made last year to establish a trip limit of five interactions, also known as takes. NMFS’s BiOp proposed a vessel limit of six.
The service has also proposed increasing the fleet-wide hard cap for loggerheads from 34 to 36, and reducing the leatherback cap from 26 to 16. The council did not oppose either change.
The Proposal
The service’s draft BiOp, released in late- March, evaluated the shallow-set fishery’s effects on a broad range of protected species, including the giant manta ray and oceanic whitetip shark — both federally listed as threatened last year — as well as loggerhead, leatherback, green, and olive ridley sea turtles, as well as the endangered Guadalupe fur seal. But what the council and HLA awaited most anxiously were the opinion’s recommendations regarding loggerheads and leatherbacks.
On March 19, NMFS closed the shallow-set fishery because it had hooked too many loggerheads. As part of a federal court settlement last year, after the fleet had caught 33 loggerheads, the service reduced the hard cap for the species from 34 to 17 pending the issuance of the new BiOp. The BiOp would not only describe the fishery’s impacts, it would also include an incidental take statement detailing the protective measures the fishery would be subject to or be required to implement. Those could include hard caps, as well as gear restrictions or area closures.
The document was expected to be completed by last October, but NFMS did not release a draft until late March. In the meantime, the fishery not only hit the loggerhead cap set in 2018, it exceeded it. All told, the fishery had hooked 20 of them by the time the fishery closed.
In the draft BiOp, the service determined that the fishery does not jeopardize the continued existence of any of the protected species known to interact with the fleet. Even so, the service proposed imposing several conservation measures:
In addition to setting new vessel and fishery limits on leatherbacks and loggerheads, the BiOp tasked the service’s Sustainable Fisheries Division with analyzing loggerhead and leatherback interactions to evaluate interaction patterns, issuing a report on that analysis and an action plan for working with vessels that interact with a disproportionate number of the turtles within 18 months of the final BiOp being signed, and, within two years, implementing measures to “reduce incidental take and associated mortality of leatherbacks and loggerheads by at least 25 percent.”
With regard the latter measure, the BiOp directed the division to evaluate closing the area east of 140°W in the first and fourth quarters of the year and prohibiting fishing in the sea surface temperature bands preferred by foraging turtles.
Although the service’s analysis suggests that loggerhead numbers may be increasing — which is why it was proposing to increase the annual cap — the BiOp stressed the agency’s uncertainty surrounding that conclusion. It noted that the data supporting the increasing trend came from a single subpopulation of loggerheads, and “the variance around our estimate suggest that the species could be declining, and we do not know the trends for the other two primary subpopulations.”
“Being that the species is comprised of subpopulations that impart specific benefits to the species as a whole, the reduction of take to these subpopulations is important to the conservation of the species as a whole,” it stated.
That being said, the BiOp left the door open to modifying the annual hard caps if the fishery implemented measures that achieved a 25 percent reduction in take.
Another recommendation in the BiOp was that NMFS’ Protected Resources Division hold a workshop to determine whether there are more effective ways to remove more fishing gear from hooked leatherbacks to increase survivorship. Also, the division should expand the protected species workshops it now holds for vessel captains to include crew members, the BiOp recommended.
Vessel vs. Trip
When Ann Garrett, assistant regional administrator for NMFS’s Pacific Islands Regional Office Protected Resources Division, summarized the BiOp to the council and its Scientific and Statistical Committee (SSC) on April 12, members of both bodies questioned why the service had chosen to add hard caps on individual vessels rather than adopt the council’s trip-limit approach.
SSC member Steve Martell pointed out that if the fishery closes or vessels hit their limit, “they have something that’s equally profitable to switch into,” referring to the deep-set fishery. Given that, the limits as proposed didn’t provide a strong incentive to avoid catching turtles, he said.
Trip limits would force the vessels that hit their limits to return to port and idle in Honolulu for a few days before heading back out, providing a much stronger incentive to try to avoid turtles, he said.
By keeping vessels fishing for swordfish, it would also benefit the market and support a cleaner fishery that has 100 percent observer coverage. Only 20 percent of the deep-set fishery is covered, and that coverage is likely even less in foreign swordfish fleets.
Garrett said her division had considered trip limits, but in evaluating the past 16 years of bycatch data, it was clear that a large portion of the total turtle takes was coming from a handful of vessels. Forty-one percent of leatherback interactions was attributable to five vessels, or 15 percent of the fleet, and 40 percent of loggerhead interactions were attributable to four vessels, or 11 percent of the fleet, she said.
Targeting individual vessels allows the fishery to stay open, since most vessels have, at most, only one leatherback interaction and fewer than three loggerhead interactions in a given year, she said.
Vessel limits ensure the burden is borne by those few vessels that may need to adjust their behavior, she continued.
A vessel limit of six loggerheads would have affected just three vessels in the past two years given historical take levels, she said.
The leatherback vessel limit would likely affect even fewer vessels. She noted that the average number of vessels with a history of more than two leatherback interactions a year was 1.25.
The service had considered a leatherback vessel limit of three, but decided it would provide no real conservation benefit, she said.
Martell asked how the service accounted for the potential change in the fishery’s behavior under vessel limits.
“We did not accommodate for that. We just looked at the numbers of animals that would have been affected,” she replied.
Martell again stressed how the scheme NFMS proposed lacked incentives for fishermen to avoid the turtles. With a vessel limit of six for loggerheads, and a fleetwide cap of 36, six vessels could shut down the fishery, he also noted.
“Wouldn’t it be better to send him back to port rather than allow him to fish in that area until he hits six turtles?” he asked.
Garrett pointed out that the number of times a given vessel interacted with loggerheads six or more times in a single year was pretty infrequent.
A Minor Change?
Under the Endangered Species Act, the conservation measures contained in the service’s incidental take statements must not “alter the basic design, location, scope, duration, or timing of the action” and must involve only minor changes to the action, which in this case is the operation of the shallow-set fishery as proposed by the council.
At the SSC meeting, chair Jim Lynch asked Garrett why she felt the measures in the draft BiOp met that requirement. “This is a pretty big change from what was proposed,” he argued.
Garrett replied that the vessel limit measures could allow the fishery to stay open because they only affected vessels with high interaction rates, and those made up “a pretty small percentage of the fleet.”
With regard to the measure calling for the implementation within 18 months of a plan to reduce turtle interactions by 25 percent, she said that is an aspirational goal. The service chose 25 percent because “it’s reasonably easy to meet from a variety of sources,” such as using Turtle Watch, a service that tracks the temperature bands preferred by the animals, and dealing with the amount of trailing gear on leatherbacks, she said
“It would be easy enough to take a suite of measures to reduce mortalities and perhaps interactions,” she said.
To Hawai‘i Longline Association executive director Eric Kingma, who until recently was the council’s National Environmental Policy Act coordinator, the measures proposed by NMFS would, in fact, significantly affect the fishery. He argued that the vessel limits would “remove participants in the fishery to an extent that will not allow the fishery to continue in the future.”
HLA president Sean Martin, a former council chair, put it more bluntly: “If NMFS is looking to change fishermen’s behavior, this will do it. It will be to not go fishing for swordfish, ever. If NMFS wants to end the Hawai‘i swordfish fishery, this will do it,” he testified before the council.
Martin said he thought the fleet-wide hard caps were unnecessary, but that his organization would not oppose them, for now. The vessel limits, however, were plainly unlawful, he said.
Dang also pointed out that the vessel limit may not solve anything in those cases where the high take level is a result of the captain’s actions. The vessel may be forced out for the season, but the captain could jump onto another boat, he said.
With regard to the possible measures to reach the 25 percent take reduction goal, Martin dismissed them as either illegal or impractical. Closing waters east of 140°W would decimate the fishery, since over 80 percent of it occurs there, and a prohibition on fishing within certain temperature bands would be nearly impossible to enforce, he said.
He pronounced the HLA could accept a loggerhead trip limit of five and a leatherback trip limit of three.
The HLA is also taking steps on its own to reduce turtle interactions, he continued, including improving fleet-wide communication and crew training, as well as funding the development of a branch line cutter that could reduce the amount of trailing gear on released turtles, thereby reducing post-hooking mortality.
Conservation Benefit
To the council and fishery representatives, the conservation benefit of a leatherback vessel limit of two simply wasn’t worth the damage it would cause to the fishery.
Analysis of historical data showed that a vessel limit of two would have resulted in six turtles being saved over the past decade or so.
If that rate were to apply to future takes, “in my opinion, it’s a pretty small benefit compared to displacing vessels in the fishery,” council member Mike Goto told Garrett. Goto manages the Honolulu fish auction and is also an HLA board member.
To Garrett, the ESA’s requirement that agencies take steps to conserve endangered species forced strict action with regard to leatherbacks.
The leatherback population that interacts with the Hawai‘i fleet is declining at 5 percent a year, she said, adding, “We believe that trip limits don’t do anything for leatherback turtles. Probably the biggest problem with trip limits [is that] vessels would still be going back out. A trip limit should address other issues, such as fishing selectivity. … The vessel limit for leatherbacks is very clear what it will do to reduce the catch of leatherback turtles,” she said.
The BiOp points out that while the Hawai‘i fishery may have only a minor effect on the leatherback population, “Nevertheless, more must be done to ensure the recovery of leatherback sea turtles. … NMFS has not investigated the survivability of adult leatherback sea turtles in this fishery, and still knows very little about the long term prognosis of those individual adult leatherback sea turtles that interact with this fishery. Given our concern for the West Pacific Ocean leatherback sea turtle’s status, immediate additional steps to help mitigate the effect of the [Hawai‘i shallow-set longline] fishery on leatherback sea turtles are necessary.”
Garrett told the council that if it has another model that supports its position that trip limits are superior, it should provide it to NMFS.
At the council meeting, the agency’s protected species coordinator, Asuka Ishizaki, presented her analysis of the conservation benefits of vessel limits vs. trip limits. She found that trip limits were better for loggerheads, but not leatherbacks.
Similar to Goto’s sentiment, she said that while the vessel limits may save more leatherbacks, they would hardly benefit the species and would have a greater economic impact, especially since the vessels that have had the most turtle interactions over the years also set the most hooks.
She suggested that reducing the leatherback post-hooking mortality rate — currently at 20 percent — would provide a greater conservation benefit. Adjusting mortality estimates and cutting branch lines just above the hook would go a long way toward achieving that, she argued.
The fact that the council needed to explore ways to reduce the fishery’s take of leatherbacks at all seemed to gall the HLA’s Kingma. He pointed out that the BiOp itself found that the likelihood the shallow-set fishery will significantly affect the turtle’s population is minuscule. “There’s a greater chance a meteor will strike the earth and kill all organisms,” he said.
Even so, the council ultimately chose to be slightly more conservative than the HLA in its recommendations regarding leatherbacks. While Martin had said he could accept a trip limit of three, the council decided two would be better. According Ishizaki’s analysis, that stricter limit would have avoided 23 leatherback interactions between 2004 and 2018, while the higher limit would have avoided only three.
—Teresa Dawson
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