Ocean Groups Say 'Intent to Sue' Misleads Public.

Business Editors and Environment Writers

SANTA BARBARA, Calif.--(BUSINESS WIRE)--Dec. 22, 1999

The California Seafood Council is alarmed by the recent notice of intent to sue the National Marine Fisheries Service (NMFS) and the California Department of Fish and Game issued by two Berkeley, California groups, regarding the protection of certain sea turtles and whales as related to the use of the strictly regulated nets employed in California's swordfish and thresher shark fisheries.

The California Seafood Council (CSC) is a non-profit organization overseen by the California Department of Food & Agriculture. Its mission is to provide educational information on California seafood, California's commercial fishing industry and local coastal waters. The CSC is expressly prohibited by law from lobbying activities.

Please take a moment to read the following information and please call if we can answer any additional questions that you may have.

About the Notice of Intent to Sue

-- The Notice of Intent filed by the Berkeley groups is based on legal technicalities, procedural issues and mathematics; however, the press release announcing the notice makes exaggerated claims, intentionally sensationalizing a very small take of marine life in California's strictly regulated fishery.

-- "Our initial consultation found that the fishery was not going to prevent recovery of listed marine species," states Irma Lagomarsino, division manager for protected resources for NMFS, Southwest Region. NMFS fishery biologist Tim Price, marine mammal team leader for the southwest region, says, "Fishermen have been very cooperative and willing to comply with the take reduction plan (mandated by the MMPA)."

-- In fact, official observers recorded only one sperm whale taken in California's swordfish fishery in 1998, none in 1997 and none in the 1999 fishery to date. The one take in 1998 was extrapolated to an estimated five animals by mathematical formula. Likewise, only one loggerhead turtle was observed taken in 1998, which again was extrapolated to an estimated five animals.

-- Notice letters sent to federal and state fishery regulators stated that an appropriate remedy to prevent litigation would be for NMFS to reinitiate consultation on its actions related to the fishery. An appropriate remedy for the California Department of Fish and Game and Fish and Game Commission would be to halt any fishing activities...

-- In fact, NMFS is already in the process of reinitiating the Section 7 consultation under the ESA. Moreover, California's swordfish and shark fishery closes for the season on January 31, 2000.

Facts About California's Swordfish and Shark Fisheries

-- California's drift net swordfish and shark fisheries are the most strictly regulated in the world. The local fleet is regulated by the size, type and placement of nets and as to when and where they may fish. The nets may not exceed one mile in length and are constructed with 18 to 22-inch wide mesh (approximately the size of an open car window), allowing small fish and other marine life to pass through. California swordfish and shark nets are set a minimum of 36 feet below the surface, often as low as 75 feet, to minimize interaction with marine mammals and other sea life. The nets are highly visible, made of multi-strand nylon twine. California drift gillnet vessels have carried observers since 1980, under state regulations and the federal Marine Mammal Protection Act (MMPA).

-- The California fleet was instrumental in testing acoustical pingers. Following the first year of highly successful tests, in 1997 California fishermen urged NMFS to adopt a mandatory requirement under the MMPA that all California swordfish nets carry acoustical pingers. These acoustic devices alert marine mammals to the presence of the nets. Confirmed by official observers stationed on the boats, the use of pingers is helping to reduce marine mammal interactions to a rate approaching zero, in accordance with the Marine Mammal Protection Act.

-- The California season for thresher shark and swordfish is relatively short. The fishery is open only August 15 through December 14 within 25 miles of the coast; the fishery is closed in spring to protect breeding populations of thresher sharks and in early winter to protect the migration of gray whales. Regulations prohibit netting for swordfish or thresher shark within 200 miles of the mainland from February 1 through April 30, and within 75 miles of the mainland from Mayy1 through August 14.

-- Scientists consider Pacific Ocean swordfish stocks to be in stable condition. California's fishery has small impact on Pacific stocks of this highly migratory species, yet California fishermen are the most strictly regulated of all Pacific Rim fleets.

-- California's drift net swordfish and shark fisheries operate under special limited entry permits, with 123 permittees actively fishing in California in 1998. Typical of California's fleet, these fishermen operate small, family-owned boats.

About the Marine Mammal Protection Act (MMPA)

-- California swordfish and shark fisheries are a model success story in their proactive efforts to comply with the very conservative requirements of the MMPA. The 1994 Amendments to the MMPA required, for the first time:

(1) minimum population estimates for all marine mammal stocks to be set by scientific review groups; scientists also determined potential biological removal (PBR) levels for all stocks, defined as the maximum number of animals (not including natural mortality) that may be removed from a stock while allowing that stock to reach or maintain its optimum sustainable population (OSP). (2) PBRs for stocks listed under the Endangered Species Act (ESA) were estimated with additional strict conservation and recovery factors applied to the PBR computed from the minimum population estimate. (3) the MMPA mandated fisheries subject to take reduction plans to reduce takings below PBR levels within six months, and all commercial fisheries to a rate approaching zero by 2001.

-- Under the MMPA, regional Take Reduction Teams were convened, representing all stakeholder interests including environmentalists, fishermen, scientists and agency representatives. They were tasked with developing, by consensus, Take Reduction Plans within a six-month period to enable fisheries to meet the goals of the MMPA.

Facts About California's Swordfish and Shark Fisheries

-- The Pacific Offshore Take Reduction Team developed a take reduction plan for the California/Oregon drift net swordfish and shark fisheries that included:

(1) mandatory use of pingers on all swordfish and shark drift nets; (2) mandatory use of "extenders" on nets, effectively lowering nets in the water column to a minimum of 36 feet beneath the surface, to minimize interactions with other marine life; (3) annual attendance at skipper workshops, where fishermen learn about the habits of marine mammals, other sea life and MMPA requirements, and discuss avoidance techniques.

About the Endangered Species Act (ESA)

-- Section 7 of the Endangered Species Act requires federal agencies such as NMFS to issue a biological opinion on the effects of their actions on threatened or endangered species. A small number of "incidental takes" are permitted, provided that the agency employs prudent measures to mitigate impacts, including setting terms and conditions that must be followed and preparing an Incidental Take Statement. Section 7 consultations are required to be reinitiated and reviewed whenever authorized take levels are exceeded.

-- For marine mammals listed under the ESA, additional requirements under the MMPA allow a small number of incidental takes only if:

(1) mortality or serious injury incidental to commercial fishing will have a negligible impact on the species or stock; (2) a recovery plan for the species has been or is being developed pursuant to the ESA, and in addition, (3) a monitoring plan must be in place and a take reduction plan must be developed.

-- NMFS's Incidental Take Statement issued in 1997 authorized an annual mortality of 3 loggerhead and 19 leatherback turtles, based on an estimate of the previous five years' activity developed from observer data. Based on available information about sperm and humpback whales at the time the Incidental Take Statement was prepared, the agency was unable to meet the criteria under the MMPA, thus could not authorize a taking from these whale stocks.

-- The ultra-conservative nature of the interaction of these two laws is illustrated by the case of sperm whales. Sperm whales are listed as a species with a worldwide range under the ESA; however under the MMPA, the stock assessment and PBR are based solely on an estimated population offshore California, Oregon and Washington. Scientists allowed a PBR of 2 for the C.O.W. stock. However, an observed take of one animal results in an extrapolated estimated take of five, mathematically elevating the fishery above PBR.

-- Scientists are now reviewing recent unpublished data, including group size, recovery factors and stock boundaries. For example, the species is known to range widely across the Pacific Ocean and as far north as the Gulf of Alaska. Expanding the range of the sperm whale under the MMPA would significantly increase the population size, resulting in a higher PBR.

-- A similar situation exists with the observed take of one loggerhead turtle in 1998, which was extrapolated to five, exceeding the level set in NMFS's 1997 Incidental Take Statement. According to law, any taking exceeding the authorized level requires agency action to reinitiate the Section 7 consultation and review the biological opinion. NMFS officials are in the process of reinitiating consultation. The initial biological opinion found that, on average, take levels have not been high, and NMFS expected average take levels to decrease with the requirement that vessels suspend nets a minimum of 36 feet below the surface.

The Bottom Line

-- California's commercial fishing industry is the most strictly regulated in the world. Irresponsible calls to shut down our local swordfish fleet, using misleading or inaccurate information, only harms the very fishermen who are abiding by regulations and working hard both to provide wholesome seafood for our tables while promoting healthy populations of sea life.

-- The California fishing industry strongly supports the underwriting of ongoing scientific research to better understand our local marine resources and fisheries. Consumers would benefit significantly if the dollars used to fund nationwide public relations campaigns and litigation were redirected to fund comprehensive research.

Additional contacts for more information:

Tim Price, National Marine Fisheries Service 562/980-4029 Irma Lagomarsino, National Marine Fisheries Service 562/980-4016 Dr. Doyle Hanan, Senior Biologist, California Department of Fish and Game 858/546-7170 Dr. Hanan may be reached by e-mail at [e-mail] (Please note: Dr. Hanan is on leave until January 3, 2000) Chuck Janisse, Executive Director, Federation of Independent Seafood Harvesters (FISH) 805/640-0165

For more information about California's seafood industry, please refer to www.ca-seafood.org.