Lawsuits bring about changes

Christopher Pala



 
It took two lawsuits over nearly a decade to overcome political pressure and get the US federal government to force Hawaii longline tuna fishermen to change their fishing methods and stop killing false killer whales, a rare species that puts our table manners to shame.
  An ISLANDS BUSINESS investigation of that process illustrates how powerful politicians can effectively subvert the law—but not forever.
  As a result of the lawsuits, an official Take Reduction Team made up of fishermen, scientists and conservationists met in late February for the first time in Honolulu to elaborate a plan to do for the false killer whales what a similar process did for endangered loggerhead and leatherback sea turtles, whose by-catch in the longline swordfish fishery plummeted following court-mandated changes in gear and methods.
  “This is no guarantee of success, but at least it makes a solution possible,” says team member and marine biologist Robin Baird of the Cascadia Research Collective in Olympia, Washington, who has written over 60 scientific papers on marine mammals.
  The false killer whale is the only animal for whom sharing is the rule, not the exception. After catching some of the fastest, most agile and smartest fish in the ocean, like big tuna, swordfish or mahi-mahi, they politely pass them to each other intact, even though they could easily swallow it. Eventually one whale takes a bite and passes it on to the next one, who does the same. Then it’s time to go fishing again. No other animal does this. Lions and wolves share too, but they have no choice: a deer or a zebra is far too big for one individual.
  Baird says the ceremony may be a way of formalising mutual trust in a tightly knit group of hunters.
  False killer whales are so named because they were found after killer whales, or orcas, whom they resemble. They are thinly spread out around the world, though most stay in the globe’s tropical waistline, also known as the tuna belt. Hawaii is north of that belt, and it has acquired a genetically distinct resident population of these whales that feed on transient game fish.
  It is by far the most studied group of false killer whales in the world and can be observed from whale-watching boats as well as from cliffs.
  Over the past 20 years, this genetically distinct population has seen its numbers fall from over 500 to 123. Its exquisite table manners and intelligence notwithstanding, the species—and the Hawaii population in particular— is facing what Baird, the marine biologist, called a “perfect storm” of adverse conditions, even though it’s rarely targeted by humans.
  Because it feeds on the same tuna we eat, it has seen its food base diminish dramatically from overfishing. Over the past half-century, according to the Secretariat of the Pacific Community’s Oceanic Fisheries Programme, the Western Pacific stock of bigeye has dropped from one million metric tons to 300,000; yellowfin from 6 to 3 million tons and albacore from 1.5 million tons to 300,000.
  As a result, the whales need to spend more energy hunting, drawing on their blubber, Baird said. Bad luck: blubber is precisely where they store toxic pollutants like PCBs, DDTs and fire-retardants that they ingest when they eat top-of-the-food-chain fish. And when the whales use up their blubber, they tend to get weak and sick.
  Then it turns out they’re smart, but not always smart enough. Their superior communications skills—they are capable of emitting whistles that can be heard miles away—allow them to alert their friends when they come upon a so-called long-line, the fishing method by which most tuna are hooked.
   These horizontal lines, tens of miles long, support thousands of shorter vertical lines set to catch tuna. Once hooked, these become easy pickings for the false killer whales, which usually manage to bite off the body and leave the head. But not always: about 80 died in the attempt in US Pacific waters over the past decade, said Baird. In addition, fishermen occasionally shoot them to keep them away from their fish.
  In 1972, the US Congress passed the Marine Mammals Protection Act to stop American fishing boats from killing dolphins and toothed whales. In 1994, Congress mandated that such deaths be brought to as close to zero as possible by 2001. It even set up a mechanism to reach that goal: a Take Reduction Team must be created, given six months to find ways of eliminating the deaths and the fisheries has seven months to start implementing it. The team is to be composed evenly of fishermen and scientists.
  In 1998, a government panel called the Pacific Scientific Review Group, noting the unusually high mortality of false killer whales in the Pacific longline fishery, recommended that the National Marine Fisheries Service change the fishery from a category with insignificant mortality to a category with significant mortality, which usually triggers the creation of the Take Reduction Team. The panel has repeated the call nearly every year since then.
  The federal fisheries service at first demurred, but in early 2001 after itself concluding that many times more Hawaii false killer whales were being killed than the population could sustain, it proposed changing the category, as the scientific panel proposed.
  In April 2001, Sen. Daniel Inouye, Hawaii’s senior politician and a longtime member of the Commerce Committee, which funds the National Marine Fisheries Service, a unit of the Commerce Department, wrote to the service’s acting head, William Hogarth, sharply questioning the category change given what he called “the very low level” of marine mammal casualties from the fishery.
  Hogarth, in a letter dated May 30, replied that nine false killer whales a year (along with 27 other less-endangered whales and dolphins) were believed to be killed by the fishery, which he pointed out was 10 times more than government biologists had determined the Hawaii population could sustain.
  On June 29, Inouye wrote back to Hogarth and passed on a letter from Kitty Simonds, executive director of the Western Pacific Regional Fishery Management Council, known as Wespac, asking him to “reply in detail” to her concerns and “produce any and all data (the service) has used in making its proposal.”
  Wespac is a Hawaii-based semi-independent panel that elaborates fisheries policy and proposes it to the fisheries service, which usually adopts it.
  Simonds, who has had the job for over 30 years, is considered a strong backer of Wespac’s most recent past chairman and most influential member, Sean Martin. He is the owner of several long-line fishing boats, president of the Hawaii Longline Association, to which all Hawaii 125 long-liners belong, and co-owner with Jim Cook, another past Wespac chairman, of Pacific Ocean Producers, the Pacific’s biggest fisheries supply company. The long liners, Hawaii’s largest commercial fishery, bring in about $60 million a year.
  In her letter, Simonds asserted that the whale and dolphin mortality of 36 a year, given that the fishers put out their long lines some 12,000 times a year, was insignificant. The fishery, she wrote indignantly, “is not a threat to marine mammals,” yet the fisheries service “can still advocate (the change) because it has the power to do so!”
   On August 9, Hogarth backed down, saying the service had decided to maintain the existing category because more science was needed to justify the change.
  Two years later, Hui Malama I Kohola, the Center for Biological Diversity and the Turtle Island Restoration Network retained Earthjustice to sue in Honolulu federal court to force the fisheries service to comply with the Marine Mammals Protection Act and change the fishery’s category.
  After much litigation, the service made the change in 2004 and the suit was dropped. Then, for five years, it claimed that it didn’t have the nearly $1 million needed to convene the Take Reduction Team, even though the law states that the fisheries service “shall give the highest priority to species that…have a small population size and are declining most rapidly”—which accurately describes Hawaii’s false killer whales compared to the 13 other species of marine mammals that do have teams.
  In December 2008, the General Accounting Office, the investigative arm of congress, noted in an audit of the fisheries service that the Hawaii false killer whale was the only US marine mammal being killed by human activity at unsustainable rates that was not covered by a team.
  So last year, the same groups returned to court, arguing that the service did in fact have the money to create the team and should do so. Martin, the longline association president, testified that the fisheries service’s assessment of the size of the false killer whale stock was “not scientifically sound” and that any restriction on the way the fleet operates “could result in the loss of revenue for the fleet, a reduction in available tax revenues for the State, threaten hundreds of jobs, and put the economic viability of the longline fleet, dealers and associated businesses at risk.”
  Scott Barrows, manager of the non-profit Hawaii Longline Association, denied it had fought the creation of the team. On the contrary, he said in a telephone interview. “We don’t want to have interactions with whales. Just yesterday, we had a boat come with 6,000 pounds of fish instead of 12,000 because he got whaled.
  “A lot of whales died because the fisheries service dragged its feet for 10 years instead of complying with the law,” David Henkin, the Earthjustice lawyer who litigated both cases, said after the team’s first meeting. “Now they’re on the hook to reduce whale deaths to a sustainable level by the middle of 2011 and virtually eliminate them by 2016.