When the nation’s overarching law governing fishing in federal waters was overhauled late last year, the Western Pacific Fishery Management Council received special attention.
Enforcement funds: From the council’s standpoint, one of the most significant measures in the reauthorized Magnuson-Stevens Act is a provision that directs a potentially serious revenue stream to the Western Pacific Sustainable Fisheries Fund, a fund that is to be used by the Western Pacific Fishery Management Council for special projects and travel and “if monies remain,” to help the state meet its conservation management objectives. In past years, the sole source of revenue was to be from payments made to the federal government by foreign nations wanting to fish in the U.S. exclusive economic zone around the U.S. remote Pacific islands areas.
No money ever accrued in the fund, however, since no foreign fleets were allowed in those waters.
Under the reauthorized act, any fines and penalties resulting from foreign incursions into the U.S. EEZ around Midway, Johnston, Kingman, Palmyra, Jarvis, Howland, Baker, and Wake “shall be deposited into the Western Pacific Sustainable Fisheries Fund.” In addition, under the reauthorized act, the fund is the beneficiary of “any funds or contributions received in support of conservation and management objectives under a marine conservation plan” for any of the U.S.-flagged Pacific islands except American Samoa, Guam, or the Northern Mariana Islands.
At the March meeting of the council, the U.S. Coast Guard reported it had captured a 210-foot-long purse-seine vessel, Marshalls 201, inside the Howland/Baker EEZ. After the vessel was taken to Guam, it was released on a bond of $2.95 million.
The vessel was arrested in September 2006, before the changes to the fund took effect. But if there was any doubt about whether any fine from this case would go into the fund, council executive director Kitty Simonds didn’t share in it. When a Coast Guard commander was reporting on the case at the March council meeting and mentioned the nearly $3 million in penalties that could apply, an ear-to-ear grin creased Simonds’ face as she clasped her hands and pumped them above her head in a gesture of triumph.
(The elation may be premature, even if the arrest date of the vessel turns out not to matter. Owners of the vessel, which include the Marshallese government, are challenging the arrest, claiming that the vessel was not two miles inside U.S. waters, as the Coast Guard alleges, but that it was instead in the territorial EEZ of Kiribati. Trial is set to begin in November.)
Shark-Feeding Ban: For several years, two vessels operating out of Hale`iewa harbor on O`ahu’s North Shore have ferried adventuresome tourists out to just beyond the three-mile limit of state waters. There, the tourists enter submerged steel cages, the better to watch sharks that are drawn by chum tossed into the water by the vessel operators.
Council member Ed Ebisui (attorney and bottomfisher who is based at Hale`iwa) has been an outspoken opponent of the practice. He and others have argued that by attracting sharks to the area, the shark-tour operators have had an adverse impact on fishers and others who use the area, such as surfers and crabbers. In the past, Ebisui has tried to get the National Marine Fisheries Service to regulate the shark-tour operations, but was frustrated when told that the practice wasn’t “fishing” as defined by the Magnuson Act, and therefore was outside federal jurisdiction.
Now Ebisui has prevailed, with the reauthorized Magnuson-Stevens Act now making it unlawful “to introduce, or attempt to introduce, food or any other substance into the water to attract sharks for any purpose other than to harvest sharks” in federal waters surrounding Hawai`i and other territories and possessions of the United States in the Pacific Ocean. Exceptions exist, including when the secretary of Commerce finds there is no public health hazard or safety risk, or when the feeding is conducted as part of a research program receiving federal funds.
At the March council meeting, Ebisui asked the Coast Guard representatives if the Hawai`i shark-viewing tour operators had been notified of the change in the law. No, was the short response.
Jimmy Hall, owner of Hawai`i Shark Tour Encounters, says that if the law was intended to put him out of business, it’s not working – not yet, anyway. “I’m still runnin’,” he told Environment Hawai`i. “No one’s come down to tell me anything.
“And in any case, there’s still a lot of process that they need to go through. It has to be put in the Code of Federal Regulations. And even if it does apply – and it doesn’t, we’re going to fight so hard, it’s just such horse shit – it’ll take a long time.”
Hall was scornful of the new language in the act, noting that it doesn’t ban all shark-feeding, only shark-feeding associated with tours. “You can kill `em, just not look at `em.”
Bottomfish Pre-emption: The secretary of Commerce has always had the right to pre-empt state regulation of commercial fisheries in state waters, but it has been a little used option up to now. The reauthorized MSA, however, imposes an affirmative requirement on the secretary to determine whether fishing for groundfish and bottomfish in state waters in two areas (New England and Hawai`i) is conducted in a way that is consistent with the corresponding federal plan. Such a determination is to be made within 60 days of enactment, which occurred January 12, 2007.
If the determination is that the state and federal plans are inconsistent, the secretary “shall, in consultation with the council, and after notifying the affected state, develop and implement measures to cure the inconsistency.”
The deadline for the determination passed the same week that the Western Pacific Fishery Management Council was meeting in Honolulu. At that time, however, no mention was made of the forthcoming consistency determination, even though management of Hawai`i bottomfish was one of the major topics of discussion.
According to Bill Robinson, administrator of the National Marine Fisheries Service Pacific Islands Regional Office, by late March, the secretary had still not issued any determination, but he was expecting it “any day now.”
One of the problems with this provision is that the comparison of state with federal plans for bottomfish fishing applies to the plans as they exist – and up to now, there is no glaring inconsistency, with the council’s bottomfish management plan having deferred to the state on regulating the bottomfish fishery around the Main Hawaiian Islands. Even though the council approved revisions to its bottomfish management plan at the March meeting, that action itself is only a recommendation to NMFS for changes in the bottomfish fishery management plan, and it may take months for the changes to take effect.
In any case, Robinson said, when the new management plan is enacted, the secretary can revisit the issue of consistency once more. If the state has amended its own bottomfish management strategy in line with the regulatory scheme outlined in the council’s action, the matter of determining inconsistency may be moot.
Pacific Islander Training: The secretary of Commerce is also directed to establish a pilot program for marine education and training of native Hawaiians and Pacific islanders on areas within the jurisdiction of the Western Pacific Fishery Management Council as well as Native Alaskans. Among other things, the program is to include education in marine science and technology, with an eye to job training in “marine related professions.” It is also supposed to “develop means by which local and traditional knowledge (including Pacific islander, Native Hawaiian, and Alaskan Native knowledge) can enhance science-based management of fishery resources of the region.”
— Patricia Tummons
April 2007 — Volume 17, Number 10