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At a time when the bigeye tuna stock in the Western and Central Pacific is being overfished — and by some standards, is already in an overfished state — the Western Pacific Fishery Management Council last month asked the National Marine Fisheries Service to find ways for the U.S. purse seine and longline fleets to catch more than what federal and international conservation measures currently allow.

This comes at a time when NMFS is facing a strong challenge in federal court to a rule the agency proposed last year allowing the Hawaii longline fleet to use, as a kind of slush fund, bigeye catches attributed to the territories of Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa once the fleet has hit the U.S. bigeye tuna quota set by the Western and Central Pacific Fisheries Commission.

Under the WCPFC’s current tuna conservation and management measure, the United States longline fleet may catch up to 3,554 metric tons of bigeye this year. That tonnage is further reduced by 52 metric tons, however — the amount by which the longline catch exceeded the quota last year.

In previous years, the Hawaii longline fleet, aided by Congress and NMFS, took advantage of what some saw as a gray area surrounding the way the WCPFC treats the U.S. Pacific Island territories. As Wespac put it in a recent press release, “Under the WCPFC, the U.S. territories of American Samoa, Guam and the CNMI, as well as the Pacific territories of other nations, are treated as a Small Island Developing State (SIDS) for most purposes. As such, they are not subject to bigeye tuna catch limits by the WCPFC.”

Under this premise, which plaintiffs in the federal case dispute, NMFS last year adopted bigeye catch limits of 2,000 metric tons for each territory, of which 1,000 metric tons could be transferred annually to the U.S. longline fleet under private agreements between the territories and the vessel owners. This arrangement, formalized under Amendment 7 to the Pelagic Fisheries Ecosystem Plan for the Western Pacific region, has allowed Hawaii longliners to catch more than 4,000 metric tons a year, well exceeding the WCPFC quotas.

But this year, the Hawaii longline fleet has been catching bigeye at a “banner pace,” as NMFS Pacific Islands Regional Office director Mike Tosatto said at Wespac’s meeting last month. And the agency’s fisheries scientists predict that unless NMFS finalizes a rule authorizing the 1,000 metric ton transfer for 2015 soon, the U.S. longline fishery in the Western Pacific will likely be shut down in the next couple of weeks, months earlier than it’s ever been closed in the past.

The U.S. Pacific purse seine fleet has already reached both its international and federal fishing day limits and was forced to close early last month.

With one U.S. fleet closed and another poised to follow suit, Wespac voted to recommend that the United States develop a national Western and Central Pacific Ocean bigeye catch limit that would apply to the U.S. purse seine and longline fisheries and consider including in this the catch limits for the U.S. territories.

“This could achieve greater flexibility in managing the impact of the U.S. fishermen on bigeye tuna while meeting the WCPFC’s conservation objective,” a council press release stated.

Whether it would be feasible, or even legal, remains to be seen.

Legal Challenges

Whether or not NMFS can allow the Hawaii longliners to assign part of their bigeye catch to territorial quotas hinges on the outcome of the U.S. District Court complaint filed last November by Earthjustice on behalf of the Conservation Council for Hawaii, the Center for Biological Diversity, and the Turtle Island Restoration Network.

The conservation groups argue that Amendment 7 “dodges quotas intended to prevent overfishing by creating a separate quota for ‘U.S. Pacific Territories’ and then allowing that quota to be transferred to Hawaii-based fishermen who neither fish in territorial waters nor land their catch in the territories,” a 2014 Earthjustice press release states.

Earthjustice attorney David Henkin was quoted as saying that the United States should set an example for responsible fishing and not make a mockery of the international protections for bigeye that it agreed to in 2013.

The groups have until July 20 to file a motion for a summary judgment. A hearing on the motion has been scheduled for Sept. 25.

At the council’s June meeting, Wespac executive director Kitty Simonds asked NOAA general counsel Fred Tucher whether any delay in the lawsuit would affect NMFS’s efforts to specify the 2015 catch limits for the U.S. Pacific Island territories.

Tucher replied, “We would probably oppose any effort to bring the council action into the litigation until a final agency decision on the specification.”

Tosatto said his office would be processing the territorial limit rule “as expeditiously as we can so it’s in place when we are estimated to meet the (WCPFC) quota.”

Exploring Options

Whether NMFS will be able to achieve that by summer, if at all, seemed to be in question at Wespac’s Scientific and Statistical Committee meeting held a week before the council meeting.

At that meting, committee members discussed the rapidly expanding Hawaii longline fleet and the possibility that a catch-share program may be necessary to limit the fishery’s growth. Under such a scheme, permitted Hawaii vessels with a history of catches would divide the available quota into shares that could then be sold to one another.

SSC member David Itano observed that this year is the first time he could remember the Honolulu fish auction having regular daily sales of over 100,000 pounds.

“It’s really concerning. Back when we had 120 to 130 boats a year, it was fine. Now its 140. We have the potential for (more than) 160. It’s gonna be a real mess,” he said.

Even so, fishers have stopped short of endorsing a catch-share program. SSC member Paul Callaghan blamed the cushion Amendment 7 provides.

“Fishermen feel they don’t need a catch-share program because now they can allocate overage to Guam or CNMI, (but) once the fishery starts closing three months ahead of time, that’ll wake them up. … This situation is tenuous and might end at any moment,” he said.

Bigeye tuna on sale in Hawaii.

Courtesy of NOAA

Jared Makaiau of NMFS’s Sustainable Fisheries Division reported that his agency was still reviewing Wespac’s recommendation to establish territorial catch limits for 2015 and 2016 and that he didn’t know whether it would become a rule since, under some of the stock assessment model runs, overfishing will occur.

“National Standard 1 is difficult to overcome,” he said, referring to a section of the Magnuson-Stevens Act that requires management measures adopted by NMFS to prevent overfishing while achieving optimum yield.

If NMFS approves the territorial transfer of 1,000 metric tons, “while it’s a negligible increase in fishing mortality, it’s still going in the wrong direction,” Makaiau said.

Council staffer Eric Kingma noted that the bigeye stock is overfished under WCPFC’s reference point, but isn’t under the council’s pelagics management plan. He also stressed the relatively small impact the Hawaii longline fleet has on bigeye.

“Even without a Hawaii fishery … bigeye overfishing continues,” he said.

“We’ll make the best case we can with the information and the decision makers will tell us the answer,” Makaiau said.

At the full council meeting, a clearly frustrated Simonds suggested that “maybe the science is all wrong.”

“This ‘overfishing’ has been going on for 20 years. So why are we calling it overfishing?” she asked.

Sean Martin, co-owner of Pacific Ocean Producers, later urged the agency to initiate “different management measures” to keep the Hawaii fleet fishing.

“We don’t even know if we’ll be fishing in the (Western and Central Pacific Ocean) in August or September. You can imagine the kind of uncertainty that gives to the industry (and) to the visitor industry,” he said, referring to how much local restaurants and hotels rely on a steady supply of fresh bigeye.

Council member Mike Goto, whose company runs the Honolulu fish auction, added that if the Hawaii fleet hits its quota, vessels will have to immediately return to offload before heading to the Eastern Pacific, where the bigeye stock is stable.

“This potential market flood is scary,” he said. “It will create a huge backlog.”

Purse Seine Plea

The bigeye longline fishery isn’t the only U.S. fishery operating at record pace. In June, NMFS closed the U.S. purse seine fishery in the Western Pacific because the fleet had reached its high seas/U.S. Exclusive Economic Zone limit of fishing days and had also used up the 300 days it had to fish in the territorial waters of Kiribati.

In the past, the U.S. fleet’s annual allotment was about 4,000 vessel-days of fishing in Kiribati, where it would catch more than half of its total haul for the year. But late last year, the country slashed that down to 300, freeing up the remaining days for purchase at a higher price by other foreign purse seine vessels.

In May, with closure of the U.S. purse seine fishery imminent, Tri Marine International (which just opened a new tuna cannery in American Samoa) petitioned NMFS to adopt a rule exempting U.S.-flagged purse seine vessels from the WCPFC high seas limit, so long as they agree to deliver at least half of their catch to American Samoa canneries.

Tri Marine chief operating officer Joe Hamby told the council at last month’s meeting he was worried the closure will push American Samoa-based vessels to countries such as the Federated States of Micronesia or Papua New Guinea, where they can still fish under the South Pacific Tuna Treaty. If they do that, “they won’t want to come back to American Samoa to unload,” he said.

A rule similar to Amendment 7 would allow those vessels to keep fishing around the territory and keep his company’s new cannery afloat, he argued.

Council member William Sword of American Samoa had noted earlier that 68 percent of the territory’s economy relies on the tuna canneries, and without a purse seine fleet, “we have no cannery.”

Although council member McGrew Rice suggested that longliners could increase their efforts to fill the gap, Sword shot that idea down. “That’s not gonna do it,” since the canneries need 450 tons of fish a day, he said.

In the end, the council recommended the establishment of a combined purse seine and longline national bigeye tuna quota for the Western Pacific, one that would include each of the 2,000-metric ton allocations set for the three territories. It also recommended that NMFS consider developing regulations that allow fishing effort and catch from Pago Pago-based U.S. purse-seine vessels to be attributed to American Samoa, so long as the vessels don’t land any more bigeye.

Whether or how such a thing would comply with the WCPFC tuna conservation and management measure or with federal law is unclear. Tosatto, who abstained from voting on both items, says that because NMFS hasn’t yet answered Tri Marine’s petition, he can’t comment on how the WPCFC would react.

“I can say that NMFS would only propose regulations that the agency deems to be legally sufficient in complying with all applicable U.S. laws, treaties and obligations,” he states in an email to Environment Hawaii.

Comments Kingma made during the SSC meeting suggest that, at the very least, implementing a bigeye tuna quota for purse-seiners would be a practical challenge. The main problem, he said, would be with accurately estimating the amount of bigeye caught by purse seine nets.

Purse-seiners generally target skipjack and albacore tuna, but juvenile bigeye are often taken as bycatch when setting on fish aggregating devices. Training someone to identify and estimate the number of bigeye in a mixed haul of 100 metric tons of fish would be difficult, Kingma said.

Reprinted with permission from the current issue of , a non-profit news publication. The entire issue, as well as more than 20 years of past issues, is available free to Environment Hawaii subscribers at . Non-subscribers must pay $10 for a two-day pass.