Transcript Donna R. Christie

Intersection of the
Magnuson-Stevens Act
with Other Laws
Fisheries Interactions with
Protected Species
Donna R. Christie
Florida State University
College of Law
Intersection of the MagnusonStevens Act with Other Laws
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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)
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
NOAA’s Office of Protected
Resources manages:
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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
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62 mammal species in U.S. waters
– 317 marine mammal species
under the MMPA, worldwide
– 33 pinnipeds worldwide
– 84 cetaceans worldwide
Species listed under both
the MMPA and ESA
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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
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
§§ 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.
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.
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 categorizing 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.
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
Bottlenose Dolphin
Mid-Atlantic gillnet
Harbor Porpoise – Gulf of
Maine & Mid-Atlantic
Mid-Atlantic gillnet
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
Atlantic 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.
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
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; “taxonspecific 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