Clear NMFS of buyers and sellers

From ANIMAL PEOPLE, May 1997:

by Carroll Cox, special investigator, Friends of Animals

Entrusted with the duty of protecting marine life in
U.S. waters, the National Marine Fisheries Service is at the
same time a division of the Department of Commerce, mandated
to promote trade. This builds into NMFS a conflict of interest
similar to that within the USDA between the mandate to
promote agriculture, the first function of the agency, and the
duty to safeguard public health and animal welfare.
The much better known conflict of interest within the
USDA was subject of a 1991 Pulitzer Prize-winning expose
series by the Kansas City Star, and of an expose by Marian
Burros, food editor of The New York Times, as recently as
April 9 of this year. Between exposes, at least 45,500
Americans died of food-borne diseases, according to the
Centers for Disease Control and Prevention. Yet the clout of
the meat, egg, and milk industries within the USDA,
Congress, and the White House is such that nothing has been
done to separate the functions of promotion and inspection.

The regulatory failures of the USDA have at least
attracted public notice. The conflict of interest at NMFS has
rarely been noted. Activist attention seems to have gone no farther
than the ads published in ANIMAL PEOPLE last fall and
winter by Ric O’Barry of The Dolphin Project, centered on the
keeping of a relative handful of marine mammals in captivity.
Yet failures of NMFS law enforcement have brought
both the continuing endangerment of wild marine mammals and
sea turtles, and the collapse of major U.S. fish stocks.
Long ago the Department of Commerce seems to
have realized that the surest way to safeguard the fishing industry
against full enforcement of the Endangered Species Act and
Marine Mammal Protection Act would be to create an enforcement
arm over which it would have direct authority.
The outcome is exemplified around Hawaii, where
commercial longline tuna fishing has boomed within the past 10
years. Much of the growth is due to overfishing in the Atlantic
so aggressive that the bluefin tuna might be listed as endangered
or threatened, but for intensive opposition from fishers.
Longlining is high-stakes fishing: a single target tuna sells for
thousands of dollars. The longliners thus add a deep-sea
dimension to the perennial conflict between fishers and marine
mammals––and exploit weaknesses in the Marine Mammal
Protection Act, written originally to address coastal fishing.
In specific, squid fishers and recreational fishers
have long clashed with sea lions, who are also blamed for eating
intensively fished Pacific Northwest salmon and steelhead
runs toward extinction, even as irrigation diversions, hydroelectric
dams, and watershed logging have destroyed more than
half the spawning habitat that existed just 100 years ago.
Though sea lions have been protected by the Marine
Mammal Protection Act since 1972, NMFS for years issued
inclusion permits that allowed fishermen to kill them if they
didn’t flee from giant firecrackers called “seal bombs,” and
special shotgun shells, called “shell crackers,“ that explode
when fired into the water. But fishers, on their honor to follow
the rules, often went directly for the kill. As a California
Department of Fish and Game law enforcement officer, I personally
observed this off Catalina Island. The Swiss Lady, a
squid-fishing vessel, projected light on the water to attract
squid to the surface. I didn’t see anyone catching squid––but I
did see a lone fisherman with a rifle shoot at least one pilot
whale and one sea lion who were also drawn to the light. The
shooter said he was doing it for fun, but also claimed that he
was in compliance with the inclusion permit.
Catching lawbreakers far out at sea tends to be harder,
but I helped catch enough to get a good idea what was
going on––and still is. A confidential informant in March 1990
told NMFS enforcement officer Eugene Witham, for example,
that aboard the longline vessel Magic Dragon, “I observed the
captain fire at least five rounds into a pilot whale. It was
brought aboard, its head removed and its teeth retrieved.”
The witness saw the captain shoot at pilot whales and
dolphins on at least three other occasions. A second witness
testified about the January 1989 shooting of a 50-foot gray
whale, 30 feet from the boat.
In 1990 and 1991, after the Magic Dragon c a s e
ended in convictions, new NMFS regulations required commercial
fishers to log and report interactions with endangered
and protected marine mammals. Nothing, however, was done
to implement the intent of the Endangered Species Act to protect
endangered sea birds and sea turtles, too. All are frequent
victims of longliners, who kill them both by accident and on
purpose. Albatrosses in particular are so hard-hit that oceanographer
Jacques Cousteau and Sea Shepherd Conservation
Society founder Paul Watson, among others, have identified
longlining as a threat to the survival of their species.
The 1994 amendments to the Marine Mammal
Protection Act barred fishers from killing marine mammals,
but bullet-riddled remains of sea lions, seals, and whales still
wash ashore with dismaying frequency.
The recently amended and reauthorized Magnuson
Fishery Conservation and Management Act of 1976 formed the
Western Pacific Regional Fishery Management Council, under
NMFS, to administer the Pelagic Fisheries Management Plan,
which governs fishing in U.S. offshore waters. Members represent
Hawaii, American Samoa, Guam and the Northern
Marianas, NMFS itself, and the fishing industry. The U.S.
Coast Guard, Department of State, and the U.S. Fish and
Wildlife Service are nonvoting concil members. This leaves
the real clout with the fishing industry and political appointees
who may owe their jobs to fishing industry support.
The results are predictable. In one recent decision,
the WPRFMC reversed previous rulings to allow commercial
fishers to take lobsters bearing eggs. This is an obvious threat
to the lobster population––and a NMFS biological opinion also
hints at a possible threat to the diet of endangered monk seals.
Understanding the WPRFMC decision includes noting
the involvement of one William Paty, former chair of the
Hawaii Department of Land and Natural Resources. Asked by
Governor Benjamin Cayetano to remain on the WPRFMC, as
Hawaii’s voting representative, even after leaving state
employment, Paty now heads the WPRFMC Crustacean
Standing Committee.
Wondering why Cayetano chose Paty over the new
Land and Natural Resources chair, who would normally hold
the WPRFMC post, I tried to obtain Paty’s financial disclosure
statements. I was told that as an appointee of the governor, he
is exempt from disclosure. Yet I was able to obtain disclosure
statements from other members selected by the governor.
I still don’t know whether Paty had personal conflicts
of interest, but it is clear that in public office he has not emphasized
animal and habitat protection. In 1991, given documentation
of the unauthorized take of protected sea birds and
marine mammals, Paty did nothing. Meanwhile, according to
one reliable source, Paty while heading the Hawaii
Deptartment of Land and Resources personally intervened to
prevent the prosecution of the Western Pacific Whale
Foundation, a whale-watching organization, which had accumulated
19 marine mammal harassment and permit violations,
chiefly for steering dangerously near to whales. Paty continued
his intervention even after being urged to prosecute in
November 1991 by then Maui County Prosecutor Kurt Sphon.
The conflicts of interest within NMFS became evident
to me through my experience with the observer program it
started in 1990 to directly monitor the fishing industry take of
endangered and threatened species. Then a U.S. Fish and
Wildlife Service special law enforcement agent, I was warned
against interviewing the observers. “Our agreement with the
vessel owners and captains,” I was told in written memos, “is
that all data from individual vessel operations will be strictly
confidential and used for scientific research purposes only.”
To further protect the industry, observers may take
photographs only with NMFS-issued cameras––never with personally
owned cameras, which might have more powerful lenses
and more depth of field, producing stronger evidence of any
lawbreaking. Former NMFS monk seal specialist William
Gilmartin was thereby inhibited from disclosing to the public
his documentation of the impact of longlining on monk seals.
Government smugglers
Observer program “protection of information” goes
even further. On one documented occasion, NMFS observers
smuggled into the U.S., via foreign fishing vessels, seven
whole loggerhead turtles, parts from 29 others, parts from a
hawksbill turtle, organs and parts from 67 common dolphins, a
striped dolphin, a Pacific whitesided dolphin, a northern right
whale dolphin, two spotted dolphins, and three northern fur
seals. The observers did not declare the remains, destined for
the National Marine Mammal Laboratory in Seattle, so that the
number of endangered and threatened species taken by the
longliners whose vessels they had been aboard could not be
noted by other agencies. I understand that for a number of
years the lab has kept records of the number of protected
species killed by fishers, but will not release the data.
The data is used internally by NMFS, however,
sometimes in mysterious ways. “Perhaps I am misunderstanding
it,” one observer wrote on November 4, 1994, to Marine
Mammal Observer Branch supervisor Norman Mendes, “but
the limit for the sea turtle take set by the biological opinion
seems to keep rising to just above the amount that, from
observer data, is estimated to be taken.”
It would be understandable for the NMFS observers
to protect their access to information from law enforcement,
much as newspaper reporters protect theirs, if NMFS was not
itself a law enforcement agency, with both the power and public
duty to mandate fishing industry compliance with the
Endangered Species Act and Marine Mammal Protection Act.
When NMFS, under theDepartment of Commerce, acts as the
helpless hostage of the fishing industry, it fails the public trust.
Recently NMFS advised that the observer program is
threatened by federal budget cuts. Observes now monitor just
4% of the fishing in Hawaiian waters: not even enough to offset
the margin of error, which scientists estimate would require
at least a 20% sample. This means that over the years NMFS
has issued frequent biological opinions and Jeopardy
Statements tending to favor commercial fishing based essentially
on guesswork, and may soon be reduced to guessing based
on even less information. Whether this will make a difference
is in itself a guess, since after allowable take statements are
issued, little is done to enforce them.
It may be naive to expect Congress and the Clinton
administration to expand the observer program to the point that
it might do some good, and to separate NMFS from fishing
industry influence, so that it might seriously protect resources.
Yet NMFS should have enough data on hand to predict that in
the very near future, if present trends continue, there may not
be enough healthy marine environment to support the ecology
of the earth as we know it. Enterprise based on exploiting
diminishing resources will be among the first casualties.