Intersection of the Intersection of the Magnuson-Stevens Act Magnuson-Stevens Act

with Other Lawswith Other Laws

Fisheries Interactions with Fisheries Interactions with

Protected SpeciesProtected Species

Donna R. ChristieDonna R. Christie

Florida State UniversityFlorida State University

College of LawCollege of Law

Intersection of the Magnuson-Intersection of the Magnuson-Stevens Act with Other LawsStevens 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 ActEndangered 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 ActMarine 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 SpeciesProtected Marine SpeciesSpecies listed under both Species listed under both

the MMPA and ESAthe 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 ProtectedNOAA’s Office of Protected Resources manages: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 Interactions of MSA Fisheries with Protected Fisheries with Protected Marine SpeciesMarine 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 PlansRecovery 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 MMPA Take Reduction PlanningReduction 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 Amendments1994 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 Amendments1994 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 AmendmentsGoals 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 FisheriesList 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 FisheriesCategory 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)• 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: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 Fisheries Affected by

Take Reduction Teams and PlansTake Reduction Teams and PlansTake 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 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 gillnetSoutheast Atlantic gillnet SE U.S.

Harbor Porpoise – Gulf of Maine & Mid-Atlantic

Mid-Atlantic gillnet Northeast sink gillnet

Fisheries Affected by Fisheries Affected by

Take Reduction Teams and PlansTake 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 TeamsCritique of Take Reduction Teams

• PRO:– In some fisheries, the TRPs have shown significant

reductions in marine mammal mortality

Critique of Take Reduction TeamsCritique of Take Reduction Teams

Critique of Take Reduction TeamsCritique 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 TeamsCritique 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 TeamsCritique 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