Fishery Council Seeks to Strike Rules that Cramp Bottomfishing in the NWHI

With commercial fishing in the Northwestern Hawaiian Islands Marine National Monument set to end on June 15, 2011, the Western Pacific Fishery Management Council took steps last month to allow the eight remaining NWHI bottomfishermen to fish unfettered during the short time they have left.

At its October meeting, the council recommended that the National Oceanic and Atmospheric Administration eliminate the monument’s “no-anchoring provision” for the bottomfish fishery, and also to repeal the ban on bottomfishing in the Special Preservation Areas and Ecological Reserves.

Under President George Bush’s June 15, 2006, proclamation establishing the monument, commercial fishing is prohibited within the Midway Atoll Special Management Area; two ecological reserves that include the waters west of 175 degrees longitude (which includes Pearl and Hermes Atoll, and Midway and Kure atolls) and waters around French Frigate Shoals and a few nearby banks; and in Special Preservation Areas (SPA) around the various islands, including Necker Island, Gardner Pinnacles, Maro Reef, Laysan Island, and Lisianski Island. After June 15, 2011, commercial fishing will be prohibited throughout the entire monument.

According to council staff, the no-fishing zones have drastically reduced bottomfishing grounds in the NWHI, especially in the Ho`omalu fishing zone, which ranges from French Frigate Shoals in the east to Kure Atoll. Seven of the nine SPAs are in the Ho`omalu zone.

“You’re allowed to fish [until 2011], but not where the bottomfish are,” Jarad Makaiau, habitat coordinator, told the council. By his estimates, bottomfishermen have lost some 48 percent of their fishing grounds in the Ho`omalu zone, and 18 percent in the Mau zone, which includes the two islands closest to the Main Hawaiian Islands, Nihoa and Necker. (Timm Timoney, who has a permit to fish in the Ho`omalu zone, told the council the closures have reduced her fishing grounds by 30 to 35 percent.)

Makaiau also noted that NOAA has said that anchoring is prohibited throughout the monument, unless it is necessary to protect life and property. According to NWHI bottomfishermen, the ability to anchor is essential to their operation.

“Bottomfish vessels use anchors to stay positioned over the area where the fish are found…The no-anchoring provision is also a safety issue, as it makes sleeping a hardship for crews at night during two- to three-week long trips to this remote region. The provision also has no scientific basis,” the council said in a press release.

Backing up its argument was a report by its Scientific and Statistical Committee which stated that the closed areas combined with the no-anchoring restriction “will make it virtually impossible to catch bottomfish within the Monument and make bottomfishing economically unfeasible to continue.”

(The monument’s regulations absolutely prohibit vessels from anchoring on coral, whether living or dead. About a dozen other activities – anchoring a vessel, swimming within an SPA, or deserting a vessel, among other things – are prohibited without a valid permit. While certain emergency and military actions are exempt from these restrictions, commercial fishing is exempt only from the prohibitions on harvesting monument resources and possessing fishing gear without a valid permit. Whether the prohibition on anchoring in the monument without a permit is a “ban on anchoring” for commercial fishermen who have NOAA permits to fish in the monument, or simply requires those fishermen to get a separate permit from the monument to anchor their vessels is unclear. During an SSC meeting held earlier that month, state Division of Aquatic Resources administrator Dan Polhemus said it was his opinion that the monument regulations provided for anchoring by bottomfishing vessels. Makaiau responded that according to a NOAA document on the monument, bottomfishermen may anchor only to protect life and property. Monument staff did not respond to a request for their views on the matter by press time.)

Given these restrictions, at the request of some Ho`omalu zone permittees, Makaiau proposed that the council consider merging the two fishing zones, which would give the Ho`omalu fishermen the option of fishing in the Mau zone. The council’s SSC did not object to the idea, noting in its report to the council that the potential shift of fishing effort to the Mau zone would have little impact on bottomfish stocks within the next five years.

The council’s Bottomfish Plan Team, however, did not endorse the merger approach. According plan team representative Bob Moffitt, some members worried that opening up the Mau zone to eight vessels “could be a problem,” since it’s estimated that the area can support an annual take of only 100,000 pounds – far less than the monument’s 385,000-pound catch limit for bottomfish.

At the council’s October meeting, SSC representative Craig Severance said that only one Ho`omalu zone fisherman was familiar enough with the Mau zone to do well there. Ho`omalu fisher Timm Timoney also said that a “gold rush” in the Mau zone was unlikely, and that she would probably fish there only under certain conditions.

“You want to be efficient. You want to go places you know. There is one Ho`omalu fisherman who used to fish in the Mau. He knows the spots,” she said.

Opposing the merger was state Department of Land and Natural Resources director Peter Young, who represents the state of Hawai`i on the council. He noted that the council had to do an environmental assessment when it created the Mau zone, which allowed up to seven permits, and staff’s current proposal would effectively raise that cap to eight without assessing potential environmental impacts.

Linda Paul of the Hawai`i Audubon Society spoke out in opposition as well, stating that the council should consider potential ecosystem effects, not just the effects on bottomfish stocks.

“Do not take this step,” she urged council members.

In the end, they did. The council – except for members Young, National Marine Fisheries Service region administrator William Robinson, and Ray Tulafono, of American Samoa – voted to direct staff to draft an amendment to its bottomfish regulations to state that “the owner of any vessel issued a permit … may fish in either the Ho`omalu or the Mau zone.”

The council also requested that the trustees of the monument recognize anchoring as a necessary component to bottomfishing and allow it under the monument regulations regarding fishing, and eliminate the closures in the Special Preservation Area and Ecological Reserves.

For years, the Western Pacific Fishery Management Council has received consistent advice from NOAA attorneys that shark feeding is not considered fishing under the Magnuson-Stevens Act and, therefore, does not fall under the council’s purview. Despite this advice, the council voted last month to draft an amendment to its pelagic fishery management plan to prohibit shark feeding in federal waters, except for traditional Hawaiian cultural or religious practices or in conjunction with fishing activities.

The vote is the culmination of years of council discussion about claims – by surfers, divers, fishermen, and others – that the handful of shark viewing tour companies on O`ahu’s North Shore are altering shark behavior by chumming the water to attract sharks, which then pose a threat to other ocean users.

In 2002, the Hawai`i State Legislature banned shark feeding in state waters, which resulted in the tour operators taking their boats beyond the three-nautical-mile limit of state jurisdiction. Last year, the council recommended that a tagging study be done to track where the sharks attracted to the viewing cages were going. At its October meeting, staff economist Marcia Hamilton explained to the council that a proper study of whether the shark feeding was altering shark behavior proved to be too expensive and was never done.

Even so, during the SSC meeting preceding the full council meeting, the committee recommended that the council research shark movement, behavior, and population numbers in and around the North Shore, as well as social, economic, and public health and safety issues. The committee also suggested that should the council pursue regulation of shark-viewing operations, it consider establishing ocean use zones like those used in French Polynesia.

Despite the SSC’s call for more research, the council’s Pelagics Standing Committee recommended that the council adopt shark feeding regulations similar to the state’s.

Jimmy Hall, owner of Hawai`i Shark Encounters, one of the handful of shark viewing tour companies operating out of Haleiwa, was full of rebuttals.

“You can go out and catch them and kill them, but you can’t go out and look at them?” he asked.

Hall also asked why the council had not proceeded with any shark research despite his offer to use his boats to help defray costs and said that he was working toward developing his own research program.

“We’re not killing anything. We’re modifying behavior of some sharks three miles out,” he said, adding that if any research indicates that his operation poses a danger to anyone, “We’re done…law or no law.”

In the meantime, whatever the council decided, Hall said he would continue to keep operating, claiming that in his view the council didn’t have any jurisdiction over shark feeding – a sentiment that Bill Robinson, head of the Pacific Islands Regional Office of the National Marine Fisheries Services, shared.

“You’ve heard from [NOAA] general counsel this [proposed ban] would not likely be looked at kindly” by NOAA, which must approve the FMP amendment for it to go into effect, Robinson told his fellow council members, adding that he was sorry that the council’s staff was putting so much work into a futile cause.

Council member and attorney Ed Ebisui, however, disagreed with Robinson. The shark feeding, he said, was increasing the density of sharks in certain areas, causing an increase in green sea turtle takes, and was also leading to a change in behavior, resulting in sharks being killed. Because of that, he argued, the tours are subject to management under the Magnuson-Stevens Act.

“Divers are culling sharks because of increased interactions,” he said.

NOAA general counsel Silas DeRoma noted that even if that were true, the council would need an “underlying record” to back up any revision to its pelagics fishery management plan.

Most of the evidence presented to the council that supported the claims of increased shark interactions was anecdotal. And like the SSC, council members Rick Gaffney and Fred Duerr supported more research on the movement of sharks.
“This is really premature,” Gaffney said of the proposal to ban shark feeding.

When it came time for the final vote, Gaffney, Duerr and Robinson opposed the ban. Ray Tulafono of American Samoa and Dan Polhemus, representing the state, abstained from voting. Although the state had banned shark feeding in its waters, Polhemus said, in his view, the council lacked the authority to do the same in federal waters. Despite the opposition and the abstentions, the proposal to amend the pelagic fishery management plan passed, with eight votes in support.

According to a report by Paul Ortiz, senior enforcement attorney with the NMFS’ Southwest Region, enforcement cases involving the Moonlight, Sea Diamond II, Paradise 2001, and the Sapphire were settled between May and September. While proposed fines for all four cases totaled $86,100, the total settlement amount was $12,750. The Sea Diamond II and Sapphire were found guilty of finning sharks without retaining the carcasses. The Sea Diamond II and the Paradise violated the Endangered Species Act when they each hooked a loggerhead sea turtle. All boats were fined for gear violations.

At the council’s meeting, NOAA general counsel Silas DeRoma was asked whether it was standard practice for cases to be settled for a fifth of the proposed fine.

“We’re all facing budget cutbacks,” council member Rick Gaffney observed. “One problem on the state level is that judges look at natural resource cases the same day they see rape, murder and pillage cases. Is it the same at the federal level?”

DeRoma said the cases are settled on a case-by-case basis. NMFS PIRO director Bill Robinson added, “The prosecution takes into account [the violator’s] ability to pay… Quite often, they get what they think they can get,” he said.

The whole dilemma of what to do to regulate the catch of bigeye tuna in the Eastern Tropical Pacific seemed to annoy NMFS’ Pacific Region director Bill Robinson.

“Our catch is so small we shouldn’t even have a quota. We’re spending an
incredible amount of money to monitor such a small number of fish,” he said at last month’s council meeting as it discussed the problems surrounding the collection of data needed to manage fisheries in a timely manner.

In 2003, the National Marine Fisheries Service determined that overfishing was occurring on stocks of bigeye tuna in the Eastern Tropical Pacific, meaning that the fish were being taken at an unsustainable rate. That same year, the Inter-American Tropical Tuna Association set caps on bigeye catch in the eastern Pacific to protect the stock from overfishing. The cap on the U.S. longline fleet, which usually accounts for between 2 and 5 percent of the total Pacific bigeye catch, was set at 150 metric tons a year.

Ever since the limits were set, efforts by NMFS scientists to make sure the Hawai`i tuna fleet stops catching bigeye once it reaches its catch limit have been hampered by a time lag in the filing of catch reports. At last month’s council meeting, tempers flared briefly after it was announced that NMFS had erred when it was determined on July 6 that the U.S. longline fleet for bigeye had reached its 150 metric ton limit for 2006 and, as a result, closed the fishery for the rest of the year.

NMFS scientists had based their decision on a variety of sources, including reports from on-board observers and data from mandatory vessel-monitoring systems, among other things. But despite their best efforts, the final logbook tally indicated that the fleet had caught only 100 metric tons.

While some council members criticized NMFS’s methods and complained that the error probably cost fishermen hundreds of thousands of dollars, NFMS scientists reminded the council that in 2005, the longliners exceeded their quota by some 350 metric tons.

“Last year, in July, when we were pretty close to 150 metric tons, by the time we processed the data, the catch was 250 metric tons. By the time we closed the fishery, it was at 500,” Russell Ito, a scientist with the Pacific Islands Fisheries Science Center, told the council.

Unlike Hawai’i’s fleet, which submits its catch reports at dockside, fleets from Japan and Korea call in their data, Ito continued. “We proposed that the industry adopt real-time data for vessels, but the industry didn’t have the equipment. One-hundred metric tons was as close as we could get it” without real-time reports, Ito said. “We tried our best.”

He added, “If that 50 metric tons is so important, the industry needs to provide real-time data.”

Although the 2007 quota for the Hawai`i longline fleet has been raised to 500 metric tons, NMFS expects there is a good chance it will need to close the fishery again. Fisheries scientists at the meeting said that they don’t have any new resources to handle the additional work the new quota requires and their calculations “still won’t be as accurate as at-sea reporting.” (Although some vessels submit electronic logbooks to NMFS, they can’t transmit their information while still at sea.)

— Teresa Dawson

Volume 17, Number 5 November 2006