Leatherback Takes in Hawai‘i Fishery Deemed Acceptable in NMFS Proposal

Can the 1,424 adult leatherback sea turtles that ply the western Pacific withstand the losses resulting from their interactions with gear set by the Hawai‘i-based longline fishing vessels that target swordfish?

A new “internal and deliberative” draft biological opinion (BiOp) that the National Marine Fisheries Service has just put out suggests that, barring some heroic action, they probably won’t withstand the myriad threats to its survival, and the fishery is a relatively minor one.

The service estimates that at most, given the current levels of hooks set by the swordfish fleet, the longliners would interact with 21 adult leatherbacks a year, with three of those dying as a result. The BiOp outlines measures that would initially cap those interactions at 16, down from the current level, set in 2012, at 26. That cap could later be modified if certain conservation measures proved successful. An annual vessel limit of two leatherback interactions was also proposed.

But the western Pacific population is already declining at a rate of 5 percent a year. The BiOp notes that the International Union for the Conservation of Nature has estimated that the western Pacific population has declined 83 percent over the last three generations and “is likely to decline by 96 percent by the year 2040.”

Still, with some 100 or so leatherbacks from this population being killed annually as a result of interacting with fishing gear of all kinds, NMFS concludes that the contribution to that total made by the Hawai‘i swordfish fleet is tolerable: “the proposed action’s effects … would have a minor or inconsequential impact on the species’ overall reproduction, numbers and distribution in the wild.”

“Based on our analysis,” the BiOp continues, “we expect little consequential change in the species’ chances of survival and recovery with or without the effects of the proposed action.”

The proposal did not sit well with the Hawai‘i Longline Association. At the meeting last month of the Western Pacific Fishery Management Council (Wespac), HLA representatives argued that the strict — and, they claimed, economically detrimental — conservation measures outlined in the BiOp to protect leatherbacks were unjustified and illegal. In testifying before the council, HLA executive director Eric Kingma seemed to warn that if the service did not work with his group to rid the BiOp of its “subjective analysis” and revise the conservation measures so that they were “reasonable and lawful,” a lawsuit might be forthcoming.

“We don’t want this to go down that road to litigation,” he said after noting that his organization prevailed in its court challenge to a previous BiOp more than a decade ago.

How NMFS responds remains to be seen. But given findings by the 9th U.S. Circuit Court of Appeals in a lawsuit brought by the Center for Biological Diversity and Turtle Island Restoration Network, any effort by the service to weaken protections for leatherbacks or loggerheads may simply spur another legal challenge from the conservation groups.

In an email to Environment Hawai‘i, the groups’ attorney, Earthjustice’s David Henkin, expressed dismay at the direction the agency was heading with respect to both leatherback and endangered loggerhead sea turtles.

“I’m deeply concerned about the proposed adjustments to the fleet-wide hard cap. Even though ‘the highest number of [leatherback] interactions on record’ is 16 leatherbacks, the draft BiOp would authorize the fishery to take even more leatherbacks [if conservation measures reduced take levels by 25 percent]. For loggerheads, the draft BiOp would authorize 36 takes, two more takes than NMFS authorized in the illegal 2012 BiOp,” he said, adding that there is no legally valid analysis to support the agency’s conclusion that both critically imperiled species can survive those high levels of harm.

“If the final BiOp fails to comply with NMFS’s mandatory ESA [Endangered Species Act] duties, we will do what it takes to counter the existential threat to leatherback and loggerhead sea turtles posed by the Hawai‘i-based longline swordfish fishery,” he wrote.

Flip-Flop

In a 2-1 decision, the 9th Circuit ruled that NMFS erred when it determined in late 2017 that a proposed increase in fishing effort by the Hawai‘i swordfish fishery would not jeopardize endangered loggerhead sea turtles. That ruling overturned a lower court that upheld NMFS’s 2012 BiOp, which capped annual leatherback and loggerhead takes at 26 and 17, respectively.

The 2012 BiOp used a climate-based model to determine turtle population trends. It found that loggerheads faced a high risk of extinction, even without any increase in fishery effort. When the effort increase proposed by NMFS was incorporated into the model, “the additional loss to the loggerhead population … ranged from 4 to 11 percent,” according to the court’s majority decision.

The same model also showed that the population of leatherbacks would likely increase if the swordfish fishery’s level of effort stayed the same and that if that effort rose, there would still be a low extinction risk.

At that time, the service determined that the swordfish vessels were likely to kill just one adult female loggerhead turtle a year, which it said would have a negligible effect on the loggerhead population “when considered together with the environmental baseline and the cumulative effects.”

Ultimately, NMFS found that the swordfish fishery would not jeopardize either turtle species.

The court majority, however, found that the agency’s 2012 decision with regard to loggerheads was arbitrary and capricious. “Specifically, the panel held that the climate-based model predicted that the proposed action would exacerbate the loggerheads’ decline, and the Biological Opinion was structurally flawed to the extent the NMFS failed to incorporate those findings into its jeopardy analysis,” a summary of the decision states.

In the new draft BiOp, the service’s “no jeopardy” finding for an endangered species facing extinction could still be a problem. This time, however, analyses suggest that the loggerhead turtle population may be increasing, while the Western Pacific leatherback population is decreasing and faces a high risk of extinction.

To NMFS’s determination that the fishery poses no jeopardy to any of the species it interacts with, Henkin had this to say: “The agency acknowledges that the species is steadily declining towards extinction and that the fishery adds to the leatherback’s woes by contributing as much as 6 percent to the species’ annual mortality. NMFS provides no population viability analysis or other reasoned analysis to support its claim that this additional mortality would not appreciably change the species’ chances of survival and recovery. The ESA demands that NMFS base its decisions on science, not bald assertions.”

In the current draft BiOp, the service decided against using a climate-based model, which it said would heap even more uncertainty into extinction risk predictions that were derived from limited data.

The climate-based models used in the 2012 “did not perform as expected because the predictions were wrong for leatherback sea turtles the majority of the time, and predictions for loggerhead sea turtles were wrong half the time,” the draft BiOp states.

This time, the service instead relied on “causal loop diagrams,” which aid in understanding how variable factors in a model are related, and incorporated climate change studies and information into various facets of the BiOp, such as its characterization of the environmental baseline and action area.

It also examined whether climate changes would alter the species’ timing, location, or intensity of exposure to the fishery, and “whether and to what degree a species’ responses to anthropogenic stressors would change as they are forced to cope with higher background levels of stress caused by climate-related phenomena.”

While studies suggest that a warmer ocean could increase the abundance of leatherback prey (i.e., sea jellies), “we do not know what impact other climate-related changes may have such as increasing sand temperatures, sea level rise” — both of which may already be affecting hatch success — “and increased storm events,” the BiOp states.

To Henkin, the BiOp’s abandonment of a climate-based model is particularly troubling.

“NMFS continues to acknowledge in its draft BiOp that climate change threatens ‘species persistence’ of both leatherback and loggerhead turtles. However, citing the allegedly ‘inherent challenges with creating population models to predict extinction risks,’ NMFS then refuses to apply any climate-based model to inform its jeopardy analysis, and the agency does not otherwise appear to have incorporated any meaningful consideration of the future impacts of climate change. If finalized, the Draft BiOp’s failure to conduct any meaningful analysis of the entirely foreseeable and unquestionably harmful impacts of climate change on leatherbacks and loggerheads would violate the ESA,” he stated.

Hawai‘i Fleet Effects

Other major threats include the harvesting of leatherback eggs and adult leatherback sea turtles and the harm done to the species by other countries’ longline fisheries in the North Pacific. The BiOp estimated that an annual average of about 120 leatherbacks a year die from their exposure to fisheries in the region, including the Hawai‘i fishery.

The BiOp determined that the Hawai‘i swordfish fishery alone would interact with at most 21 leatherbacks a year with an annual average of 10. The current average is six.

In determining the risk the fishery posed to the population, the BiOp took a scientifically conservative approach, evaluating the results of the likely maximum take of 21 leatherbacks in a given year. In that case, the BiOp estimated that three of those 21 would die and that loss would represent a mere 0.2 percent of the current population estimated to number 1,424 individuals in the Western Pacific. Given the already projected population decline of 5 percent a year, the Hawai‘i shallow-set fleet would be responsible for 4 to 6 percent of the 71 leatherback deaths expected to occur in year one.

“[In] many years the total mortality is likely to be less than 3,” the BiOp stated. Even so, the document stated that leatherbacks face a high risk of extinction.

“The cumulative effect of other stressors, including other fisheries must be removed or abated or this species will reach a catastrophic bifurcation (tipping point) where recovery is no longer possible. Today, based on the present population abundance, we expect that there is time yet to ensure that the chances for the recovery of the West Pacific Ocean population are not yet foreclosed,” it states.

Fishery representatives testified to Wespac that more turtles would be conserved if the United States got more of its swordfish from the strictly regulated Hawai‘i fleet rather than foreign fleets, such as Brazil’s.

The BiOp, however, did not come to the same conclusion, which Henkin was happy to see.

“NMFS ‘found no evidence to suggest that a market transfer effect occurs today.’ Then, NMFS debunked the longliners’ claim that ‘sea turtle bycatch rates of the foreign longline fisheries [are] higher than the sea turtle bycatch rate of the [swordfish] fishery.’ After reviewing the best available data, NMFS said it ‘cannot conclude … there is a beneficial effect from the continued operation of the [fishery] to sea turtles, generally, or to the specific sea turtle species adversely affected.”

To Justin Hospital, a researcher with the Pacific Islands Fisheries Science Center and member of the council’s Scientific and Statistical Committee, however, the BiOp’s conclusions about market transfer effects were “a little strong,” and the method used to calculate interactions by foreign fleets was unclear.

Previous Efforts

As a result of previous litigation over the swordfish fishery’s take of sea turtles, the fishery was closed in 2001. NMFS was forced to take strong measures to limit the interactions. By 2004, the agency had released a biological opinion that cleared the way to allow the vessels to resume their pursuit of swordfish.

The current draft BiOp takes note of the relative success of these measures: “The 2004 management measures have proven to reduce leatherback sea turtle interaction rates by 83 percent…. Since the [swordfish] fishery reopened in 2004, an estimated 22 leatherback sea turtles have died. All of the leatherback sea turtles caught were released alive; mortality estimates come from applying the NMFS post-hooking mortality criteria.” From the mid-1990s to the closure, the longline fleet routinely caught more than 100 leatherbacks a year, with the shallow-set swordfish vessels accounting for almost all of those interactions.

In that same period, Congress appropriated millions of dollars to fund efforts by Wespac to join forces with conservation groups to improve the nesting success of leatherbacks and loggerheads on beaches in both the eastern and western Pacific.

The funding for those efforts dried up years ago and the council has no ongoing work in these areas, so far as any public record can document.

More recently, starting in 2015, the council has received a grant of $875,000 for what it described as a “marine turtle award” – although none of the actions described in the narrative associated with the grant mentions turtles at all. Instead, it is described as assisting the council in carrying out its responsibilities under the federal Magnuson-Stevens Act, which governs fishing by all U.S.-permitted fleets.

At Wespac’s April meeting, Ann Garrett, assistant administrator for the service’s Protected Resources Division in the Pacific islands region, reported that the agency provides hundreds of thousands of dollars in funds to international partners every year to conduct surveys of the turtles’ nesting beaches, outreach, and a variety of other activities.

NMFS regional administrator Mike Tosatto added that for more than a decade, his office has received about $1 million for sea turtle work, but that money has been used instead to offset a shortfall in fishery observer funding. He said he’s been working with NOAA headquarters to regain observer funding, which would allow that $1 million “earmark” to be spent on turtle research and the like.

Tosatto also said his agency is working to reduce the number of turtle takes by foreign fleets in the Pacific. “I believe our fishery is the model fishery. We are working hard on the international forum to level the playing field,” by trying to get international fishery management organizations to mandate the kinds of sea turtle protection measures the Hawai‘i fleet is subject to.

—Teresa Dawson and Patricia Tummons