If false killer whales could read, recent notices in the Federal Register would have had them keeping the midnight oil burning. For the most part, they probably would have liked what they read.
On November 28, the National Marine Fisheries Service posted a 25-page rule finding that the Main Hawaiian Islands insular population of the animals (Pseudorca crassidens) was a distinct population segment and entitled to treatment as an endangered species under the Federal Endangered Species Act.
The very next day, NMFS published 27 pages of new rules regulating the interaction of false killer whales, no matter whether they’re part of the MHI population, with Hawai`i-based longline fishing vessels under the authority of the Marine Mammal Protection Act.
In both instances, publication of the rules settled federal lawsuits.
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The Endangered Species Suit
Whenever a petition to list a species as endangered is brought to the Fish and Wildlife Service or the National Marine Fisheries Service, the responsible agency must first determine, within 90 days, whether the petition has merit.
NMFS agreed that the Natural Resources Defense Council’s petition to list the insular population of false killer whales as endangered, filed in November 2009, warranted a status review, which started with a Federal Register notice on January 5, 2010. Thirty days later the public-comment period on the petition closed. On November 17, NMFS issued its proposed rule to grant the Hawaiian insular population status as an endangered species.
And then – nothing. At least not until after the lawsuit was filed on May 22, 2012, pointing out that under the ESA, the final ruling was supposed to have been issued within one year of the proposed rule – i.e., November 17 2011.
A month later, however, NMFS was pulled in a different direction. On June 25, Kitty Simonds, executive director of the Western Pacific Fishery Management Council (Wespac), wrote Lance Smith, the regulatory branch chief of the Protected Resources Division within NMFS’ Pacific Islands Regional Office. Simonds asked Smith to “consider substantial new scientific information regarding false killer whales prior to making the final determination” on the NRDC’s petition.
Simonds was referring to results of the 2010 Hawaiian Cetacean Ecosystem Assessment Survey (HICEAS), which found an insular population of false killer whales inhabited waters around the Northwestern Hawaiian Islands. At the time of the NRDC petition, the Main Hawaiian Islands population of false killer whales was thought to be unique inasmuch as no other population of the species was known to have movements restricted to waters so close to an island group. Simonds now was suggesting that the MHI population wasn’t so unique after all, and, what’s more, there was the possibility that it was not “restricted to waters around the MHI and that the insular population may be a combination of the MHI and NWHI populations, resulting in a much higher population than previously thought.”
By September, attorneys with the Department of Justice had worked out a settlement agreement with NRDC, calling for NMFS to publish a final rule on the false killer whale petition by December 11. On September 19, Judge Robert L. Wilkins signed off on the agreement.
But there was one more hurdle. On September 18, NMFS announced it would be re-evaluating the “distinct population segment” determination “in light of newly available information.” For 15 days, it would be receiving public comment pertaining to the new information.
A Second Bite…
For the most part, the letters NMFS received during the short comment period were predictable.
Simonds, writing again on behalf of the council, stated that NMFS had appeared to find “behavioral and ecological factors to be critical” in the determination that the MHI population was a distinct population segment, with genetic evidence secondary. Given the new information about the NWHI population and its behavior, she said, “the council therefore believes that … the Hawaiian insular population no longer meets the discreteness and significance criteria.”
The Hawai`i Longline Association, through its attorney Ryan Steen at Stoel Rives LLP, disputed NMFS’ finding that the MHI population had undergone a substantial decline over the last 20 years. A 1989 study had overestimated the population at the time, it claimed, while a 2009 survey that resulted in a population estimate of 635 false killer whales (most believed to be insular) had been discounted. (The 2009 survey is generally regarded as having counted many animals more than once, possibly because they were attracted to the survey vessels.)
But the comments from William Aila, chair of the state of Hawai`i’s Department of Land and Natural Resources, were strikingly different from those that the state had submitted in 2011, during the first round of public comment. Back then, Aila had said that if the population was found to be endangered, “the department will work with the NMFS to insure that activities under the department’s jurisdiction are in compliance with the requirements of the Endangered Species Act.” He went on to note that such a finding “would have a profound effect on our programs,” especially with respect to kaka and shortline fisheries.
On October 3, 2012, however, Aila signed off on a letter that challenged the “new science” and urged NMFS “to consider that all except one of these papers are not yet externally peer-reviewed and published.”
“We have some concerns,” he continued. “In general, the [mitochondrial] DNA analysis may not be appropriate. The genetic analysis in general may be compromised by pseudo-replication. The effective population size estimates include an analysis of convergence that is not statistically appropriate based on our consultation with the author of the statistical program used for this analysis.” Aila then requested NMFS “to discuss these issues with our experts,” who “have specific analytical suggestions that we are happy to share.”
What happened?
In the time between the first and second letters from the DLNR, Sarah Courbis had been hired as the state’s “operations coordinator” with the Hawaiian Islands Humpback Whale National Marine Sanctuary. Courbis, who wrote her doctoral dissertation on pantropical spotted dolphins, made no mention of the practical issues raised by Aila in his earlier letter. Instead, in the October letter and later exchanges with NMFS staff, she delved into the finer points of statistical sampling techniques, DNA analysis, microsatellites and alleles. In one email to NMFS, Courbis defended her criticisms of the conclusions contained in the new studies by describing them as “technical suggestions like any reviewer would make. There is no political agenda.”
(To review the detailed responses of NMFS to these criticisms, see the Federal Register notice of November 28. That and other information and documents on this subject are also available at: http://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html )
Discrete, Significant
In making a decision on the petition, NMFS gave heavy weight to the conclusions of a biological review team (BRT) of eight scientists that it had convened to consider the petition: three from the Pacific Islands Fisheries Science Center in Honolulu, two from the Northwest FSC, two from the Southwest FSC, and one from the Alaska FSC.
When the team reviewed the new studies, it found – as it had in 2010 – that “the MHI insular population of false killer whales continues to meet the discreteness and significance thresholds to be considered a [distinct population segment]” under the Endangered Species Act. In fact, it determined that “all factors taken together increased confidence and strengthened the significance finding.”
As for the discreteness determination, it reported that it “found strong support for discreteness based on behavioral factors.” The MHI insular false killer whales “are markedly separated from other false killer whales based on behavioral factors,” the BRT found. “In particular, MHI insular false killer whales form a tight social network.”
The final rule published by NMFS was not based on the BRT finding alone, but also on “peer review, public comments, … and other available published and unpublished information” as well as consultation with “species and other individuals” familiar with the insular population.
“Based on this review … we conclude that the MHI insular false killer whale meets the discreteness and significance criteria for a DPS… We also agree with the BRT’s assessment of possible threats and their current and/or future risk to the MHI insular DPS. The greatest threats … are small population effects and hooking, entanglement, or acts of prohibited take by fishermen.”
The final rule was to take effect on December 28.
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Marine Mammal Protection Act
The November 28 rule gave endangered species protection to fewer than 150 animals that are estimated to constitute the entire population of Main Hawaiian Islands false killer whales. The November 29 rule is intended to offer protections to all false killer whales that range in waters fished by the Hawai`i-based longline fleet.
The lawsuit that prompted NFMS to take action under the Marine Mammal Protection Act was filed last June – the most recent in a series of lawsuits dating back to 2003 that Earthjustice has brought against the agency on behalf of the animals.
In 2010, in response to one of the lawsuits, NMFS convened a take reduction team charged with devising approaches that would reduce the interactions, or “takes,” of false killer whales by the longline fleet. The team, made up of representatives of academic institutions, government agencies, conservation organizations, and industry, came up with a proposed rule that NMFS put out for public comment in July 2011.
By law, the agency was to have issued a final rule before the year ran out. When that had not happened by last June, Earthjustice once more went to court on behalf of plaintiffs Turtle Island Restoration Network and Center for Biological Diversity.
In mid-October, a settlement agreement was worked out, which called for NMFS to publish by November 30 the final rule for a take reduction plan to reduce the incidental injury to false killer whales by commercial fishing vessels.
One day before the deadline, the final rule appeared in the Federal Register.
Weaker Hooks, Stronger Lines
A key element of the plan involves a change in the gear used by longline vessels. By February 27, all boats are to use only circle hooks with a maximum wire diameter of 4.5 mm (.18 inches). The leaders and branch lines to which the hooks are attached are to be at least 2 mm in diameter. Any other material used in construction of a leader or branch line has to have a minimum breaking strength of 400 pounds.
The idea behind the changes is that they will allow animals a better chance of escape with minimal injury in the event they become hooked. The weaker circle hooks should, in theory, allow the animals to pull themselves off the hooks more easily. The stronger leader and branch lines will remain attached to the main line in the event the false killer whales tug against them, thus avoiding a situation where animals swim away trailing lines that could eventually lead to their injury.
Originally, the take reduction team considered requiring even thinner hooks (4.0 mm or 4.2 mm). To allay concerns of fishers that this would reduce their catch of large fish, trials were conducted in October-December 2010, which found no impact at all on the catch. But when NMFS learned that the standard hook in the fleet was even larger than 4.5 mm, it relaxed the proposed standard to just 4.5 mm.
“The team’s consensus recommendation was that while ‘standard’ circle hooks … alone will likely help reduce M&SI [mortality and serious injury] compared to tuna and J hooks, weaker than standard circle hooks … would provide even greater conservation benefits …. [W]hile we agree with the team’s findings, NMFS will require a fleet-wide shift to 4.5 mm wire diameter for circle hooks, so as to achieve a comparable reduction in hook wire diameter based on the corrected information.”
Expanded Exclusion Zones
The take reduction plan also calls for making changes to the areas where commercial longliners can fish. Until the new rule took effect, longline vessels had to fish outside of what was known as the Main Hawaiian Islands Longline Fishing Prohibited Area – essentially, a polygon described by straight lines running from a series of geographic coordinates, extending from 75 to 100 miles from shore. A kind of narrow belt circling around the northern part of this zone was seasonally opened (from February 1 to September 30 of each year).
The new rule revises the exclusion zone by doing away with the area where fishing was seasonally allowed. “This regulation,” NMFS says, “makes it clear that the entire Longline Fishing Prohibited Area around the MHI … is important for false killer whale conservation. It is anticipated that this closure will substantially reduce the risk that the deep- and shallow-set longline fisheries” – tuna and swordfish fisheries, respectively – “pose to the Hawai`i Insular stock of false killer whales… It is also expected to eliminate incidental M&SI of the Hawai`i Pelagic stock of false killer whales by longline fisheries in that area.”
A new “southern exclusion zone” – extending 200 miles, out to the boundaries of the U.S. Exclusive Economic Zone – is established as well. If the number of observed mortalities and serious injuries of false killer whales reaches a certain level, this area also will be closed to longline fishing vessels.
Exactly when that closure trigger is to be pulled is to be determined by a complicated formula set forth in the final rule. Basically, it is a function of the number of observed incidents that are thought to result in a false killer whale being killed or sustaining serious injury, the area where the injury occurred, and the current estimate of the so-called “potential biological removal” (PBR) that the false killer whale population can withstand.
If the PBR remains at the level of 9.1 animals a year, where it now stands, then the trigger is pulled once the number of observed instances of mortality or serious injury to false killer whales by tuna-fishing (deep-set longline) boats fishing inside the EEZ hits two.
If the PBR changes, then the threshold for closure of the southern exclusion zone is reached when the number of observed M&SI inside the EEZ, when extrapolated to the whole fleet (based on the percentage of observer coverage) exceeds PBR. The current trigger value of two will remain valid, the rule states, until a new trigger value is published in the Federal Register.
Pelagic vs. Insular
The closure of the southern exclusion zone (SEZ) may help the Main Hawaiian Islands insular stock of false killer whales, especially those that stray into the zone where they overlap with the range of the pelagic stock. However, NMFS says, “the trigger [for closure of the SEZ] applies only to the Hawai`i Pelagic stock … given the stock’s strategic status and the location of the closure…. For the purposes of implementing SEZ measures, any false killer whale incidentally taken inside the U.S. EEZ around Hawai`i is assumed to be part of the Hawai`i Pelagic stock.”
Also, not just any interaction with a false killer whale counts toward the trigger tally. According to the rule, “only observed serious injuries or mortalities would be counted,” with an “expedited process for serious injury determination” being set forth in the rule as well.
At the point that the trigger is reached, NMFS is to publish a notice announcing closure of the exclusion to begin within 15 days of the notice. The zone will remain closed for the rest of the calendar year.
If additional false killer whales are seriously injured or killed even after the zone is closed, then NMFS is to convene the take reduction team “to discuss the circumstances of the event and consider the effectiveness of the SEZ closure and the overall” take reduction plan, the rule states.
If the SEZ had been closed during any part of the previous year, then more stringent measures are to be taken. Again, NMFS is to close the SEZ and convene the take reduction team. The closure is to remain in effect until NMFS, together with the take reduction team, determines that the deep-set longline fleet’s interactions with false killer whales are reduced to levels that do not threaten the pelagic stock’s survival.
A Challenge to Authority
In comments on the proposed rule, the Hawai`i Longline Association argued that NMFS had no authority to create requirements with respect to interactions with false killer whales outside the EEZ. “HLA states that whether interactions increase or decrease on the high seas has no bearing on whether the U.S. EEZ [potential biological removal] is being exceeded,” NMFS said in characterizing HLA’s comments.
“NMFS disagrees,” the Federal Register notice states. The Marine Mammal Protection Act “broadly prohibits the taking of any marine mammal on the high seas by a person or vessel subject to the jurisdiction of the United States, unless such taking is otherwise authorized under MMPA.”
The HLA also objected to NMFS’ policy for determining whether injuries were serious or not. “NMFS’ national policy for distinguishing serious from non-serious injuries … was finalized and has been in effect since January 27, 2012, and is outside the scope of this rulemaking,” NMFS stated.
Earthjustice commented on the proposed rule, saying it doesn’t address the MMPA’s long-term goal of reducing incidental M&SI to levels approaching zero within five years. NMFS responded by stating that the take reduction plan “contains measures to reduce the number and severity of incidental interactions… NMFS will continue to work with the team … and, in consultation with the team, will monitor [the take reduction plan] to determine whether it meets the MMPA’s short- and long-term take reduction goals.”
Earthjustice and the Humane Society of the United States also “expressed particular concern regarding the Hawai`i shortline fishery, and the potential that longline fishermen may switch to shortline fishing to avoid having to comply with regulations affecting the longline fisheries.”
In responding, NMFS stated that “regulation of the shortline fishery is outside the scope of this rule. The shortline fishery is believed to operate with very few participants and with low levels of landings.” If there is a switch to more shortline fishing, NMFS said, it will work with the state to monitor the shortline fishing effort, “particularly during any closure of the SEZ.”
— Patricia Tummons
Volume 23, Number 7 January 2013
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