Intersection of Magnuson-Stevens Act with Other Laws: Fisheries Interactions with Protected Species

1. Intersection of the Magnuson-Stevens Act with Other Laws Fisheries Interactions with Protected Species Donna R. Christie Florida State University College of Law

2. 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 Act • Marine Mammal Protection Act • Also • US Constitution • International Treaties (IWC; CITES)

3. 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

4. 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.”

5. 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 ProtectedResources 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 Protected Marine Species

6. 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

7. 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)

8. 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

9. 1994 MMPA Amendments §§ 117-118 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.

10. 1994 MMPA Amendments §§ 117-118 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.

11. 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

12. 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 Idesignates fisheries with frequent serious injuries and mortalities incidental to commercial fishing; • Category IIdesignates fisheries with occasional serious injuries and mortalities; • Category IIIdesignates fisheries with a remote likelihood or no known serious injuries or mortalities. [Note : Thousands of vessels and fishermen fall within Categories I and II.]

13. 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.

14. 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.

15. 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.

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

19. Critique of Take Reduction Teams

20. 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

21. 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

22. 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