When the Center for Marine Conservation and the Turtle Island Restoration Network brought a lawsuit last February against the National Marine Fisheries Service, they were asking for an order requiring NMFS to prepare an environmental impact statement for the Hawai’i based longline fishery, which accidentally catches endangered species of sea turtles in the course of hooking tunas, swordfish, and other ocean fish. And they wanted the judge hearing the case to find that the agency violated the Endangered Species Act in issuing an opinion allowing the take of turtles to continue.
They didn’t get everything they asked for, but what they did get went far beyond what most people near the issue thought they would. On November 23, federal district Judge David A. Ezra issued an injunction that, as of December 23, bars the longline fleet from fishing in about a million square miles of ocean in the Northern Pacific.
The injunction has been denounced by the Western Pacific Regional Fishery Management Council, the federal agency managing fishing in the U.S. waters around the Hawaiian Islands, and the allied Hawai’i Longline Association. Both groups claim the injunction will be financially devastating to fishers and detrimental to the fish-consuming public as well.
Paul Achitoff of the EarthJustice Legal Defense Fund Pacific office in Honolulu, who represented the plaintiffs, was also disappointed for obviously different reasons. “Had the judge agreed NMFS violated… the Endangered Species Act, he would have been hard pressed not to shut the whole fishery down, because the result of a finding that the existing biological opinion on the fishery’s impact on turtles was inadequate would have invalidated or eliminated any right to rake any leatherbacks, even a reduced number,” Achitoff told Environment Hawai’i.
“While the judge’s injunction reduces the fishery’s impact on turtles, it doesn’t eliminate it. To that extent, I would view it as a compromise between what we hoped for and believed the law supports, and what the defendants argued, which was that the judge shouldn’t do anything at all”
There were two legal angles to the lawsuit. First, the plaintiffs argued the longline fishery, which is regulated by NMFS, violated the Endangered Species Act in the take of turtles – especially the critically endangered leatherbacks. Second, they claimed NMFS had violated the National Environmental Policy Act by failing to prepare an environmental impact statement, or EIS, for the fishery.
Even before Judge Ezra issued his first ruling in the case in October, NMFS had agreed to prepare the EIS – a process that it expected would take at least two years. In the interim, the agency planned to issue a shorter, preliminary environmental assessment for the longline fishery and had, by the time of Ezra’s ruling, already scheduled the first scoping session for the EIS.
Apart from asking for the EIS and a finding of jeopardy under the Endangered Species Act, the lawsuit also sought an injunction, preventing further fishing until the EIS process had run its course.
The judge’s initial October ruling was, in both respects, disappointing to the plaintiffs. The EIS issue was pretty much mooted by the National Marine Fisheries Service having already agreed to prepare the document. In addition, the judge rejected the argument that NMFS had violated the Endangered Species Act. He did, however, find that a “carefully tailored injunction” was warranted to reduce turtle bycatch in the fishery during the time it took to prepare the EIS and requested that the parties to the lawsuit provide suggestions as to terms of the injunction.
The proposed injunctions were submitted on November 8, and on November 22, the parties came back to Ezra’s courtroom to argue their respective positions.
Promises, Promises
The position staked out by U.S. Attorney Steve Aim and other attorneys with the Department of Justice proposed that NMFS conduct activities in four different areas.
In the category of “sea turtle hooking and post-hooking mortality measures,” the Justice Department attorneys proposed that NMFS: conduct mandatory workshops for skippers and vessel owners in the fishery; require vessels to be equipped with line clippers and dip nets to facilitate freeing hooked turtles; continue its already ongoing research into bycatch mitigation measures; translate into Korean and Vietnamese (the languages spoken by most of the foreign-born fishing crews in the Hawai’i fleet) agency guidelines on ways to avoid turtle killings; and begin research into the effects of several possible mitigation measures – all within four months.
Under the proposed Justice Department injunction, NMFS would also, in the category of “fishing gear modification,” require vessel operators to select two of three possible gear modifications (using circle hooks, deploying hooks no closer than 240 feet from a float line, or using bait dyed blue or black).
In the category of “time and area closures,” the Justice Department proposed that NMFS “complete analysis of the temporal and spatial distribution of interactions between sea turtles and Hawai’i based longline vessels. After completing that analysis, NMFS would convene a panel (members to be selected by plaintiffs, NMFS, and the Hawai’i Longline Association) to recommend time and area closures.
Finally, NMFS proposed it be required to hold an international workshop on the state of the Pacific leatherback sea turtle within a year of the injunction and that it “continue to assist programs in the Pacific region to protect and conserve leatherback sea turtles on nesting beaches, and pursue partnerships with appropriate entities where beaches are located.”
The position of the Hawai’i Longline Association, which joined the case as a defendant-intervener, followed generally the lines staked out by the Justice Department. However, the HLA parted company with NMFS over the proposal for gear modification. These, wrote HLA attorney Steven Y. Otaguro, “are not justified as a matter of science and would impose significant economic penalties on the longline fleet with little, if any, demonstrable benefits to sea turtles.” One element in the HLA proposal missing from that of NMFS was to require vessels be equipped with “dehooking” devices that would help “dislodge and remove hooks from accidentally captured turtles with minimal injury,” Otaguro wrote.
Old News
Most, if not all, of the elements of the injunction proposed by NMFS were already supposed to have been carried out under terms of the 1994 and 1998 biological opinions that NMFS issued concerning the taking of sea turtles by the Hawai’i fleet. That opinion, required by the Endangered Species Act, found that the longliners, as managed under rules established by the Western Pacific council, posed no threat to any endangered species.
The plaintiffs noted these earlier promises in their effort to get the court to impose more drastic measures. “NMFS has known for years that it was imperative to do the research it now suggests the court order it to do, and has for years ignored a legal mandate to do it.” In the 1994 biological opinion, NMFS said a study of fishing techniques “must be implemented to allow” the longline fishery to continue, the plaintiffs’ memo to the court said. Again, in 1998, they noted, NMFS “imposed the ‘nondiscretionary’ term and condition” that the agency “develop and implement, within two years, studies to determine which fishery practices and/or gear characteristics would effectively reduce turtle interactions and/or mortality.”
Judson Feder, legal counsel for the Southwest Region of NMFS, acknowledged the point. “Some of [the plaintiffs’ argument] is correct. It’s black and white in the terms and conditions of biological opinions.”
While “some things were done,” Feder said, there was “certainly an overlap between what was suggested in the proposed injunction and what is promised in the biological opinions.”
The approach taken by Earthjustice and plaintiffs was far simpler. Rather than asking for area closures or gear modifications, their proposed injunction called for closing the fishery as soon as the fishery had “taken” 98 loggerhead sea turtles, or 27 olive ridleys, or 43 leatherbacks, or 2 green sea turtles. (Under the Endangered Species Act, a “take” of an animal listed as endangered or threatened occurs anytime such an animal is killed, injured, captured, or harassed.)
In language that the defendants found just as upsetting, EarthJustice set forth the means by which these limits were to be calculated -“by multiplying the actual number of takes observed by official observers” by the percentage of actual observer coverage of the fleet.
This approach seems straightforward enough – that is, if observer coverage is on fishing trips representing 20 percent of fleet activity (the minimum level of coverage NMFS says is needed to provide reliable estimates), you would multiply the number of turtles observed to be taken by five to get an estimate of overall takes by the fleet. But actual observer coverage is much, much lower than that. At the present, it hovers around 4 percent – a level so low that it is nearly impossible to extrapolate from observed data an accurate estimate of the turtle takes by the fleet at large. NMFS has proposed increasing observer coverage, but fishers are generally opposed, and, in any event, federal funds for the observer program have not allowed for expanded coverage of the fleet.
To calculate the total numbers of turtles taken, NMFS statisticians have therefore employed a sophisticated statistical analysis of observer data, taking into account such factors as where the fleet fishes, what it targets (whether tuna, swordfish, or “mixed”), and vessel size.
In any event, and however the estimates are made, there is not a great deal of statistical confidence that attaches to them. “Unfortunately,” wrote NMFS scientist Sam Pooley in an affidavit for the court, “given the current high levels of uncertainty in our estimates of take rates due to low observer coverage, it is quite possible that we would not be able to detect with any certainty a 50 percent reduction in turtle take rates from the effects” of separating hooks from float lines.
Minimizing Harm
The arguments and proposed injunctions were presented to Judge Ezra on November 8, and he heard oral arguments from all parties on November 22. One day later, he issued the injunction, to take effect December 23. “This court,” he wrote, “believes that under the circumstances this injunction best achieves the required balancing by providing the best possible opportunity to save the turtles, specifically the Leatherback sea turtle, while minimizing to the greatest extent possible the harm to the longline fishery.” He then ordered NMFS to take six steps: First, by March 23, NMFS is to require every vessel in the longline fleet to use line clippers and dip nets to free hooked turtles with the least possible harm to the turtles. Second, again by March 23, NMFS is to complete plans and begin research into the effects of gear modifications on turtle bycatch. Third, and again by March 23, NMFS is to have completed an analysis of the times and areas where interactions occur between turtles and the Hawaii fleet, so as to better determine which time and area closures might be of greatest benefit to the turtles. Fourth, two weeks alter this analysis is completed, NMFS is to convene a panel of experts selected by NMFS, plaintiffs, and the Hawai’i Longline Association to review the analysis and make recommendations to NMFS. And two weeks after receiving those recommendations, NMFS is to make “appropriate time and area closures based upon the greatest benefit to the sea turtles and considering the costs to the Hawai’i-based pelagic longline fishery.” The fifth element stirred the most controversy: “Within 30 days of the date of entry of this order, NMFS shall prohibit all activities of the Hawaii longline fishery… within the area encompassed and bounded by the following description: north of 28 degrees N and between 168 degrees W and 150- degrees W.”
Finally, within four months, NMFS is to report back to the court with any findings and recommendations for modifying the order – “based on scientific evidence.”
Karnella, administrator of NMFS office in Honolulu, says that in light of Judge Ezra’s ruling, the agency plans to step up its schedule for completing the environmental impact statement for the pelagic fisheries.
“When they asked us, at the beginning of this, how long it would take to do an EIS, we had no idea,” Karnella told Environment Hawai’i. “We called around to other NMFS offices and got estimates. Based on what they told us, we figured the complete process would take up to two years.
“Since the injunction, we’re looking at what we need to do to get this done as quickly as possible and yet produce a document that will stand up to the rigors of legal proceedings. We’re looking at redirecting efforts of personnel to help shorten that time span.”
Karnella said that the Honolulu laboratory would also be trying to analyze data that would help narrow down closure areas. “I’m fairly confident,” he said, “that we could come up with closures that are better for turtles and better for fishermen.”
Enforcement?
As to how NMFS intends to enforce the injunction, Karnella noted that most of the area closed- “except for a little nubbin in the southwest that lies within the Northwestern Hawaiian Islands exclusive economic zone” – is in international waters. “In theory, once these fishermen go outside U.S. waters, they don’t necessarily need to be governed by U.S. fisheries laws,” Karnella said.
The longline fleet is now equipped with a computerized vessel monitoring system, or VMS, which is able to alert NMFS enforcement personnel when a vessel enters one of the closed areas around the Northwestern Hawaiian Islands. While it would be a straightforward matter to adjust the VMS to signal entry into the area closed by the injunction, Karnella said it was still unclear whether VMS tracking could be used for enforcement purposes in international waters.
A policy on the use of vessel monitoring systems was adopted by the Western Pacific council in 1992. Language in that policy suggests that the council did not intend that VMS be used in international waters: “The council, through its VMS Committee, will assist in the development of VMS programs for fisheries operating under each [fishery management plan], as appropriate, throughout the region, including American Samoa, Guam, Hawai’i, the Northern Marianas, and other areas of the EEZ,” or Exclusive Economic Zone, referring to waters out to 200 miles from the shores of U.S. states, territories, or possessions (emphasis added).
Whether through VMS or other measures, Karnella said, NMFS does intend to enforce Ezra’s injunction, “and we’ve got enforcement folks and attorneys looking at that now. The big question is what the Magnuson Act does and does not allow us to do once these guys get beyond our EEZ.” The federal Magnuson-Stevens Fishery Conservation and Management Act governs fishing in U.S. waters.
Karnella voiced some skepticism over the impact of the injunction on turtles. “I don’t know whether the judge thought about the issue of redistributing effort,” Karnella said. “When he says you can’t fish in that box” – referring to the closure area “fishermen who were planning to fish there aren’t going to go to a bar and drink instead of fishing. They’ll fish someplace else. If that closed area is a good fishing area – and seasonally we believe that at least the southern border of it probably is a very productive swordfish area -they’ll go and fish as close to that line as they can without crossing it. That, of course, is going to have some effect. The effect on the level of takes and moralities isn’t necessarily going to disappear; the effort will just be redirected.
“One of the likely scenarios is the fishermen will go as close to that line as possible. There maybe mixed results. There may be an overall savings of sea turtles, but the majority of the reduction would come with loggerheads.”
— Patricia Tummons
Volume 10, Number 7 January 2000
Leave a Reply