NMFS Ignores Letter of the Law in Extending Bigeye Quota Exemption

When does a law not mean what it says?

Apparently, whenever the National Marine Fisheries Service decides Congress must have made a mistake.

That is what has happened in the case of the Commerce Appropriations Act that was passed in March. One part of the measure seems to have been intended to extend for one year (up to December 31, 2013) the congressional authority allowing Hawai`i longliners to get around international limits on their bigeye tuna catches by entering into agreements with the U.S.-flagged territories in the Pacific (American Samoa, Guam, and Commonwealth of the Northern Mariana Islands) that allowed part of the territorial catches to be assigned to the Hawai`i fleet.

But the final version of the law does not achieve that. Instead of referring to the provision in the previous year’s act that authorized this scheme, the 2013 Commerce Appropriations Act refers to a different paragraph having nothing whatsoever to do with the longliners’ arrangements with the territorial governments.

That did not prevent the National Marine Fisheries Service from going ahead and asking for public comment on a rule that would extend the arrangement through the end of 2013. The rule makes no mention of the problem with the current appropriations act, citing as authority Section 113(a) of the original legislation. In fact, it goes so far as to claim that the earlier law was “continued by” the current appropriations act, despite the problem with the language.

After the 2013 law was signed, Environment Hawai`i asked Mike Tosatto, head of the Pacific Islands Regional Office of the National Marine Fisheries Service, what would happen if Congress didn’t fix its mistake by the time the Hawai`i longliners reached the quota allotted them by the Western and Central Pacific Fisheries Commission. They would either have to stop fishing for bigeye or fish in the more distant waters of the Eastern Pacific, he responded – unless the Western Pacific Fishery Management Council could amend its management plan for pelagic fish to address the issue.

When the proposed rule was published in June, Tosatto was asked again about the problem that the law that claims to authorize the rule in fact does no such thing. He replied that NMFS lawyers had given his office the green light to act as though Congress had indeed re-authorized the 2012 law.

In its comments, the Hawai`i Longline Association was generally supportive of the proposed regulations, “insofar as they continue to confirm and implement agreements” authorized by the 2012 legislation.

Its letter, from HLA attorney Jeffrey Leppo, also put NMFS on notice that in addition to having the previous agreement to take part of the American Samoa bigeye quota, the association “will be entering into another qualifying … arrangement with American Samoa, Guam, or CNMI in substantially the same form.”

“Insofar as HLA is able to discern, the proposed rule does not alter in any way the applicable criteria for a qualifying Section 113(a) arrangement. If NMFS intends anything different, HLA hereby objects (because such an intent would conflict with applicable law and because fair notice of a different intent is not given in the proposed rule).”

Reinitiated Consultation?

The only other substantive comments were from Catherine Kilduff, the staff attorney for the Center for Biological Diversity.

“The practical effect [of the proposed rule] is to allow unlimited bigeye tuna fishing through agreements transferring territories’ unlimited quota by virtue of a loophole created by appropriations riders,” she wrote.

“We request that NMFS end overfishing and set catch limits for all fishing within U.S. jurisdiction, including vessels in the longline fisheries of American Samoa, Guam, and the CNMI. At its meeting concluding June 28, 2013, the Western Pacific Regional Fishery Management Council recommended that the Pelagic Fishery Ecosystem Plan be amended to include a 2,000 metric ton bigeye tuna longline limit for the U.S. Territories… There is no reason not to implement this recommendation now via the proposed rule.”

Citing the recent work of Jeffrey Polovina and Phoebe Woodworth-Jefcoats, Kilduff wrote, “Catch limits for all vessels are imperative given the recent science showing that increases in fishing in the past 16 years have altered the Pacific Ocean ecosystem, perhaps irreversibly…. Current fishing levels are unsustainable and NMFS has a legal and moral mandate to reduce bigeye tuna mortality immediately.”

Finally, Kilduff stated that should the proposed rule take effect, NMFS “must reinitiate consultation on the activity’s effects on endangered species such as the sea birds, sea turtles, and endangered marine mammals. The most recent biological opinions do not include fishing effort data from 2011 or 2012 – years in which there have been no bigeye tuna limits – and thus this is new information triggering reinitiation because the effects of the agency action may affect listed species in a manner or to an extent not considered in prior biological opinions.”

For Further Reading

To learn more about the law giving Hawai`i longliners the ability to catch more bigeye tuna than the Western and Central Fisheries Commission has allotted them, see our January 2012 cover article, “Federal Law Gives Hawai`i Longliners Free Rein to Ignore International Quota.”