Fisheries Interactions with Protected Species Donna R. Christie Florida State University College of Law

Intersection of the Magnuson- Stevens Act with Other Laws National Environmental Policy Act Coastal Zone Management Act Administrative Procedures Act Regulatory Flexibility Act OCS Lands Act Endangered Species ActEndangered Species Act Marine Mammal Protection ActMarine Mammal Protection Act Also –US Constitution –International Treaties (IWC; CITES)

Endangered Species Act Prohibition on taking endangered and threatened species –Taking incidental to an otherwise lawful activity with mitigation plan and takings will not “appreciably reduce the likelihood of the survival and recovery of the species in the wild” Designation of critical habitat Preparation of recovery plans Section 7 consultations –Biological opinions –Reasonable and prudent alternatives

Marine Mammal Protection Act Moratorium on taking –With a number of exceptions and exemptions not generally related to commercial fishing Provideds for taking incidental to commercial fishing –Reducing mortality and serious injury Initially to below a stock’s potential biological removal (PBR) level. Now, to “insignificant levels approaching a zero mortality and serious injury rate.”

Protected Marine Species Species listed under both the MMPA and ESA beluga whale blue whale bowhead whale Chinese River dolphin fin whale gray whale Gulf of California harbor porpoise humpback whale Indus River dolphin killer whale North Atlantic right whale sei whale Southern right whale sperm whale Guadalupe fur seal Hawaiian monk seal Mediterranean monk seal Saimaa seal Stellar sea lion NOAA’s Office of Protected Resources manages: 72 ESA-listed species (of total of approx. 1,950 listed species) –21 marine mammals –8 marine turtles –35 marine and anadromous fish –4 marine invertebrates –1 marine plant 62 mammal species in U.S. waters –317 marine mammal species under the MMPA, worldwide –33 pinnipeds worldwide –84 cetaceans worldwide

Interactions of MSA Fisheries with Protected Marine Species Bycatch –Longline fisheries Risso’s Dolphins; Small whales; Sea turtles –Trawl nets Dolphins; Small whales; Sea turtles Gear entanglement –Traps & Pots Large whales (right, humpback, fin); Bottlenose dolphins –Gillnets and seines Dolphins; Large whales; Harbor porpoises; sea otters Competition –Prey Reduction Pinnipeds; whales

Recovery and Conservation Plans The ESA requires that NMFS develop and implement recovery plans for threatened and endangered species. –5 plans under revision or in development –29 plans issued (8 in the last two years) MMPA conservation plans are required for species that have been designated as "depleted". –“Depleted” means below optimum sustainable population or listed as endangered or threatened under the ESA –Plans: Beluga Whale (Cook Inlet); Northern Fur Seal (Pribilof Island/Eastern Pacific)

MMPA Take Reduction Planning Background –Tuna/dolphin controversy highlighted fishery/ marine mammal interactions –Kokechik Fishermen’s Asso. v. Secretary of Commerce (1988) Interim exemption for commercial fishing –Information for management of fisheries interactions (scientific and information about what fisheries had significant interactions) –Stock assessments of marine mammals

1994 MMPA Amendments §§ of MMPA created a comprehensive program to minimize interactions: 1) Stock assessment reports for all marine mammal stocks in U.S. waters, including determination of potential biological removal (PBR) level. PBR is defined as the maximum number of animals that may be removed from a marine mammal population while still allowing it to reach or maintain its optimum sustainable (OSP) level. OSP is defined as a range between the population size that produces the maximum rate of net productivity and the maximum number that can be supported by the ecosystem.

1994 MMPA Amendments §§ of MMPA created a comprehensive program to minimize interactions: (cont.) 2) Establishing scientific review groups 3) Identifying & regulating fisheries with significant interactions 4) Take reduction teams to develop take reduction plans 5) Short and long-term goals for reducing incidental take of marine mammals in commercial fisheries.

Goals of the 1994 Amendments Reducing mortality and serious injury from fisheries interactions initially to below a stock’s potential biological removal (PBR) level and now, to “insignificant levels approaching a zero mortality and serious injury rate.” “Insignificant levels” has been defined by regulation to mean less than 10 percent of the PBR level

List of Fisheries MMPA §118 requires NMFS to publish annually a list of all U.S. commercial fisheries categor- izing them based on the level of incidental serious injury and mortality of marine mammals –Category I designates fisheries with frequent serious injuries and mortalities incidental to commercial fishing; –Category II designates fisheries with occasional serious injuries and mortalities; –Category III designates fisheries with a remote likelihood or no known serious injuries or mortalities. [Note : Thousands of vessels and fishermen fall within Categories I and II.]

Category I and II Fisheries Register with NMFS Report to NMFS all incidental injuries and mortalities occurring during commercial fishing operations (includes Category III fisheries as well) Required to take on board an observer upon request by NMFS.

(TRT) Take Reduction Team (TRT) TRT must be developed for each “strategic stock” that interacts with a Category I or II fishery Strategic Stock is a stock: –for which the level of direct human-caused mortality exceeds the potential biological removal level; –which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the ESA within the foreseeable future; or –which is listed as a threatened or endangered species under the ESA, or is designated as depleted (less than OSP) under the MMPA.

Take reduction plans must include: review of the final stock assessment report for each marine mammal addressed by the TRP and any substantial new information; An estimate of the total number and, if possible, age and gender, of animals from the stock that is incidentally killed or seriously injured each year during the course of commercial fishing operations, by fishery; Recommended regulatory or voluntary measures for the reduction of incidental mortality and serious injury; and Recommended dates for achieving the specific objectives of the plan.

Fisheries Affected by Take Reduction Teams and Plans Take Reduction Plan Affected Fisheries Category I Category II Atlantic Large Whale Mid-Atlantic gillnet NE/Mid-Atlantic Amer. lobster trap/pot Northeast sink gillnet Atlantic blue crab trap/pot Atlantic mixed species trap/pot Northeast anchored float gillnet Northeast drift gillnet Southeast Atlantic gillnet SE U.S. Atlantic shark gillnet Bottlenose Dolphin Mid-Atlantic gillnetAtlantic blue crab trap/pot Mid-Atlantic haul/beach seine NC inshore gillnet NC long haul seine NC roe mullet stop net Atlantic shark gillnet Southeast Atlantic gillnet SE U.S. Harbor Porpoise – Gulf of Maine & Mid-Atlantic Mid-Atlantic gillnet Northeast sink gillnet

Fisheries Affected by Take Reduction Teams and Plans Take Reduction Plan Affected Fisheries Category I Category II Pelagic Longline Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline Pacific Offshore Cetacean CA/OR thresher shark/swordfish drift gillnet (≥14 in mesh) Take Reduction Team Affected Fisheries Category II Atlantic Trawl Gear Mid-Atlantic Bottom Trawl Mid-Atlantic Mid-Water Trawl Northeast Bottom Trawl Northeast Mid-Water Trawl False Killer Whale Hawaii-based longline fisheries

Critique of Take Reduction Teams PRO: –In some fisheries, the TRPs have shown significant reductions in marine mammal mortality

Critique of Take Reduction Teams

PRO –Bycatch of the western stock of Stellar sea lions down from hundreds of thousands per year to a few dozen –Bycatch of southern sea otters and monk seal reduced significantly

Critique of Take Reduction Teams CON –There are at least 30 marine mammals that meet the criteria for a Take Reduction Team based on available information –at least a dozen still not covered Inadequate funding Inadequate or outdated information Changing fishing practices not relevant to issues leading to some stocks being categorized as strategic (4) –For many other stocks, NMFS doesn’t have the data to determine whether they are strategic –Many of the Take Reduction Teams were not established until lawsuits were brought or threatened –Most TRPs have not been developed on schedule

Critique of Take Reduction Teams CON –No strategy for assessing effectiveness of TRPs; limited information about compliance –MMPA’s approach is largely inefficient; “taxon- specific bycatch policy disregards that many bycatch issues overlap –The Atlantic Large Whale TRT has been ineffective in developing measures to protect the right whale (MMC) –Some commentators suggest that priorities are set by the degree of interference with human activities rather than degree of threat to a stock