Court orders a second look at controversial fish observer program
A U.S. District Court judge has ruled that a newly-implemented fisheries observer program in the Gulf of Alaska may have become unreliable, and is sending federal managers back to the drawing board to fix it.
The decision by Judge H. Russel Holland is being hailed as a victory by Southeast Alaska’s longline fleet, who have chafed under the new system, which requires them to carry human observers on their relatively small vessels.
But federal fisheries managers see it as a win as well.
The observer program is not going away. Instead, the court’s action may compel the National Oceanic and Atmospheric Administration — or NOAA — to find a way to remodel it, which is what the small-boat fleet has wanted since the North Pacific Fisheries Management Council adopted the new plan in 2010.
Joel Hanson is the conservation director for The Boat Company, the non-profit regional cruise company-cum-environmental organization that brought the lawsuit.
“We don’t hesitate to speak our peace with federal agencies when we see them doing something awry.”
In this case, something awry meant redistributing observer coverage on Alaska’s trawlers — who drag huge nets along to ocean floor scooping up pollock — in order to create an observer program for the halibut fleet, generally smaller boats who use a type of gear called longlines, which catch fish on hooks.
Hanson says NOAA — acting under the direction of the North Pacific Fisheries Management Council — just got it wrong. The fish observer program is intended to keep track of bycatch, or the number and kinds of fish being caught unintentionally. Restructuring the program was supposed to improve coverage of the fisheries, but Hanson believes its gotten worse.
“So this was an opportunity for us to look at what the outcome of the restructuring program was, where it should be, and how to make it more like what we think the public expected, and what we certainly expected. ”
And Judge H. Russel Holland agreed in part. In his 50-page ruling, Judge Holland says coverage under the new system risks dropping below a reliable threshold.
The government doesn’t necessarily dispute that finding.
“The analysis that the judge has asked us to do is actually very helpful.”
Martin Loefflad directs Fisheries Monitoring for NOAA’s Alaska Fisheries Science Center in Seattle. Judge Holland’s decision requires the agency to prepare another environmental analysis, to ensure that enough observers are on enough boats to gather reliable data on bycatch.
“And we’re certainly game to do that, because we too share the concern of the data quality issue.”
Unfortunately for fishermen, better coverage may mean an increase in costs. The fleet pays 1.25 percent of its gross sales to fund the observer program. The Magnuson-Stevens Act caps those fees at 2 percent, but there are still millions of dollars in play.
Loefflad says the decision validates the government’s efforts to expand observer coverage in the 25 years since it began.
“The court’s judgement on us is really quite a success story because it preserved many of the strides that we were able to get through with the restructured observer program, working through the North Pacific Fisheries Management Council. So many of those things that didn’t occur in the past are present today.”
Foremost among those new things is coverage of the halibut longline fleet, which did not have to carry observers until last season. An organization calling itself The Fixed Gear Alliance intervened in the lawsuit on behalf of The Boat Company. Linda Behnken is the director of the Alaska Longline Fisherman’s Association — or ALFA — which is member of the Alliance.
“The main improvement we hope to see in the program is an increase in observer coverage on vessels where bycatch is an issue. So salmon bycatch is all in the trawl fishery. Halibut bycatch is primarily in the trawl fishery. To see better coverage.”
The Fixed Gear Alliance also wanted to see electronic monitoring (EM) addressed in NOAA’s new Environmental Analysis, but Judge Holland did not allow that argument to move forward. Still, the use of cameras to count fish instead of humans — especially in cramped quarters on boats under 60 feet in length — has its advocates. Really important advocates. Like Sen. Lisa Murkowski, recently speaking to the Sitka Chamber of Commerce.
“We can be smarter in our technologies to allow for electronic monitoring that is accurate and reliable, and doesn’t get in the way of the operations. It’s been fascinating to me how much foot-dragging we have had from the agencies, Oh you know, we just don’t know, somebody might tamper with this, you can’t do that — Good heavens! Work with us.”
Linda Behnken at ALFA hopes that NOAA does just that when it reopens the environmental analysis — even though the judge didn’t spell it out. ALFA has been working for several years on an electronic monitoring pilot project. NOAA is piloting a program of its own with nine boats this season.
NOAA’s Loefflad says it’s a start.
“I think there is a future for electronic monitoring in Alaska. We’re doing the research right now, and we’ve been partnering to move that research forward.”
Still, electronic monitoring would have to be adopted by the North Pacific Management Fisheries Council — a process that is by no means fast. None of this is particularly fast. The Boat Company’s attorney, Paul Olson, filed this suit in 2012 with Earthjustice. Although the observer program isn’t going away, Olson considers the ruling a win anyway, since the government is going to have to take another hard look.
“Basically what the court said is that your NEPA analysis failed to consider whether you would acquire statistically reliable data at significantly reduced coverage rates, especially for the trawl fleet.”
NEPA stands for National Environmental Policy Act. In this case, a new NEPA analysis means — not necessarily starting from scratch — but a new document, and a new opportunity for the public, the small-boat halibut fleet, and US Senators to comment on the process.