Fishing Lines

California Longline Vessels May Face Suit Over Turtle Catches in North Pacific

Owners of longline vessels in Hawai`i as well as their crews have loudly protested what they say is the injustice of U.S. District Judge David Ezra’s ruling that restricts fishing activity of Hawai`i-based boats in the Northern Pacific Ocean. The ruling is unfair, they say, because so many other fleets – from the western coast of the United States as well as from other Pacific Rim nations – continue to fish the waters without being bound by similar restrictions.

That may change soon – at least as far as California-based longline vessels are concerned. In July, Brendan Cummings, an attorney in Berkeley, California, representing the Sea Turtle Restoration Project of the Turtle Island Restoration Network, the Center for Biological Diversity, and the Recreational Fishing Alliance, put the U.S. government on 60-day notice of intent to sue over alleged violations of the Endangered Species Act.

In 1996, Cummings writes in his notice letter, the National Marine Fisheries Service “carried out an internal informal consultation regarding the Interim Final Rule Implementing a Permitting System for U.S. Vessels Fishing on the High Seas,” concluding that the regulations were not likely to affect listed endangered or threatened species. But, Cummings continues, this consultation “addressed only the interim regulations, not the issuance of actual permits under the HSFCA [High Seas Fisheries Conservation Act] and the subsequent fishing activityÉ. Additionally, the 1996 informal consultation did not cover É species such as the short-tailed albatross. Finally, the consultation document itself called for reinitiation of consultation within 18 months to more fully address the impacts of É fishing on listed species. No such reinitiation of consultation has occurred.”

Now that Judge Ezra is requiring the National Marine Fisheries Service to hire back many of the observers that it fired in May, some of those observers are raising once more questions about the safety of the vessels on which they will have to work. Several instances of observers being placed aboard unsafe vessels were detailed in a letter written July 29 by the Association of Professional Observers to Rod McInnis, then the acting director of the NMFS Southwest Region.

“Even with only 1-4% coverage” – the previous level of observer coverage of the Hawai`i fleet before Ezra’s ruling took effect – “observers have experienced life-threatening situations beyond the normal, occasional occurrence,” wrote Kimberly S. Dietrich on behalf of the association. She goes on to list several examples of problems:

Although federal rules allow observers to refuse to board unsafe vessels, “the 1999 HLOP [Hawai`i Longline Observer Program] manual states: ‘Refusing assignments is grounds for dismissal.’ ”

“In 1994, [observer] Elizabeth Mitchell was fired for refusing an unsafe vessel. After repeated problems that were well documented during the ensuing year, NMFS placed another observer, Stuart Arcenaux, on board with no investigation by NMFS as to the repair of these known problems. The vessel sank.

“In 1998, Louis Van Fossen had a knife placed against him, not just pulled on him, which is clearly not only a criminal act but a violation of the Magnuson-Stevens Act. The captain and crew were also under the influence of illegal narcotics during the entire fishing trip. When he reported it, NMFS fined the vessel $10,000 with an agreement that the captain would not go out to sea when there was an observer on board. If NMFS really supported their observers, criminal charges would have been filed against this man.

“In 1998, Eric Sandberg received a permanent, debilitating injury on the F/V [fishing vessel] Red October that had numerous safety problemsÉ[A] former port coordinator for the HLOP wrote a memo to his supervisor, Tim Price, prior to his departure from the program recommending that this vessel be removed from the sampling pool because of safety problemsÉ This request was granted. However, when the subsequent port coordinator took over, the F/V Red October was re-activated. Observers continue to be placed on this vessel.”

“In 1999, an observer was on board the F/V Seabird and had to experience de-watering at sea by the Coast Guard because the boat was taking on water. He reported it to the HLOP, but NMFS continued to place an observer on board six months later without any investigation regarding the status of repairs. NMFS had knowledge about the vessel’s problems before the first de-watering incident as well. The third time was a charm and the boat sank.”

Requiring a two-year record of vessel safety and Coast Guard violations to observers before their deployment on a ship is one change the observers are requesting. Another would prevent observers being deployed on vessels that are the subject of investigations relating to large-scale drug trafficking or other narcotics violations. Dietrich also asks NMFS to “redesign sampling protocol to allow breaks for observers to go to the bathroom and eat a meal during retrieval of gear,” which can last for hours. Also, she asks that vessels be required “to stop the gear when observers are taking fish samples or processing turtle or other protected species specimens. For the past six years, there has been no protocol for these problems and the data continues to untruthfully reflect that observers are watching every hook when it is virtually impossible to do so.”

There will be no commercial lobster season for 2000 in the Northwestern Hawaiian Islands. The decision by the National Marine Fisheries Service, announced in the June 26 Federal Register, came as no surprise to any of the six permit holders in the fishery. They had been preparing for the closure since February, when NMFS officials gave warning that their scientists had determined that the lobsters’ numbers were so low they could probably not support any fishing effort this year.

Any lingering doubts about the closure were effectively extinguished earlier in June, when NMFS told U.S. District Judge Samuel P. King that there would be no lobster season this year. The disclosure came just days before Judge King was scheduled to rule on a request that he enjoin NMFS from opening the lobster season this year. According to Paul Achitoff, attorney with Earthjustice Legal Defense Fund representing environmental groups suing NMFS, had NMFS not voluntarily closed the lobster season, Judge King would have almost certainly granted the injunction.

The environmental groups are Greenpeace Foundation, the Center for Biological Diversity, and Turtle Island Restoration Network. They allege that the lobster boats take animals that the critically endangered monk seal needs for prey.

The down side of a complete closure is a gap in the year-to-year data on the relative abundance of lobsters caught in the fishery. For this reason, NMFS is planning to have a limited “experimental” lobster fishing season, in which a permit holder in the lobster fishery would fish, under the direction of scientists, and be able to keep part of the haul as his payment. Any proposal for an experimental fishing season would, however, be subject to Judge King’s approval.

Judith P. Guthertz, a professor of criminology at the University of Guam, was elected to the position of chair of the Western Pacific Regional Fishery Management Council. In a vote held July 13, Guthertz received the vote of all the members from the U.S. territorial and commonwealth areas in the Pacific (American Samoa, Guam, and the Commonwealth of the Northern Marianas Islands). Those votes were enough to defeat Guthertz’ opponent, Frank Farm, a council member from Hawai`i.

Many council observers regard Guthertz as relatively innocent of any knowledge of fisheries. She has not hesitated, however, to make known her views and has been an outspoken critic of federal agencies, including NMFS, the U.S. Fish and Wildlife Service, and the courts. Lately, she has made no secret of her dislike of conservation groups, whom she holds responsible for U.S. District Judge David A. Ezra’s order reducing drastically the longline fleet’s efforts in Hawai`i, and she has also voiced her concern over acquisition of Palmyra Island by The Nature Conservancy.

Bryan Y.Y. Ho, an attorney and manager of longline fishing vessels, has been appointed by the U.S. Secretary of Commerce to the council, taking the seat held by former council chair Jim Cook. Guthertz and Aitofele T. Sunia, of American Samoa, were reappointed to second terms.

Finally, Rebecca Lent is the newly appointed director of NMFS Southwest Region, whose jurisdiction includes Hawai`i and the other U.S.-flag islands in the Pacific. Lent had been chief of the Highly Migratory Species Division at NMFS headquarters since 1997. She has a Ph.D. in resource economics from Oregon State University and an M.A. in economics from San Diego State University. According to NMFS, Lent’s graduate research focused on Pacific salmon and the California swordfish fishery. Lent takes over from Rod McInnis, who was acting regional administrator for more than a year.

— Patricia Tummons

Volume 11, Number 3 September 2000