I recently read a
press release announcing that a number of environmental groups have petitioned
to have the Pacific bluefin tuna listed under the Endangered Species Act.
There’s little doubt that the tuna deserves such a
listing.
The
spawning stock is down to just 2.6% of its overall potential, and many of
the fish that remain are harvested before they have a chance to mature, which
means that there won’t be many new spawners entering the population.
On the other hand, everyone should realize that even if the
Pacific bluefin is considered “endangered” under United States law, it’s not
going to do the tuna a lot of good, for most of the killing occurs outside U.S.
waters. The
United States only accounts for 2% of commercial landings, with Japan and
Mexico harvesting most of the fish.
And given Japan’s stance on whaling, among other things, we can be
pretty sure that nation couldn’t care less about U.S. view on threatened
species.
An ESA listing will keep some southern California anglers
from killing a few bluefin, and might prevent U.S. dealers from importing some
sushi-grade fish, but ending either of those endeavors isn’t going to rebuild
the Pacific bluefin, as they have relatively little impact on the stock.
It would accomplish far more to have the Pacific bluefin
listed on Appendix I to CITES—the
Convention on International Trade in Endangered Species.
That would lead to a complete ban on
international trade, which would certainly have a bigger impact on Pacific
bluefin landings than a unilateral U.S. action.
But as I suggested earlier, a lot of the Pacific bluefin that are caught
end up in Japan, and Japan has a long history of keeping its favorite
foodstuffs off of a CITES Appendix. A
number of developing nations that can make a quick buck off dead fish also have
an aversion to any sort of international agreements that might interrupt their
cash flow. Thus, for now, the Pacific
bluefin tuna remains, literally and figuratively, dead in the water.
However, the effort to use the Endangered Species Act to protect
various marine species remains very much alive.
It’s a relatively new strategy; the first effort that I recall was an
unsuccessful attempt to list white marlin, which occurred about 15 years ago. Since then, we have seen efforts to list a
number of species that swim in U.S. waters, ranging from apex predators such as
sharks down to forage fish such as river herring.
Generally, the efforts have been unsuccessful, although a
request to list Atlantic sturgeon led to a number of stocks being deemed either
“threatened” or “endangered.”
Too often, the only thing that listing petitions do is consume a lot of scarce management resources, most particularly the managers’ time, in an effort that, on most occasions, sees the petition rejected.
So the question is, on balance, do the petitions do good or harm?
It’s a tough question to answer, and any answer probably
differs depending on the species involved.
When it comes to pelagic fish such as white marlin—which were the
subject of a new listing petition in 2012, after previous requests were
denied—it’s hard to see much good going on.
White marlin are a wide-ranging species. Tagged
fish caught off the eastern United States are commonly recaptured off a number
of Caribbean, Central American and South American nations. A few even traverse the Atlantic, and are retaken
off southern Europe or northeast Africa.
White marlin may not be sold in the United States, nor
harvested by U.S. commercial vessels, although a number are discarded dead in
the pelagic longline fishery. There is a
recreational fishery, but it emphasizes catch and release, and landings are
minimal. According to the National
Marine Fisheries Service, between 2002 and 2015, annual recreational white
marlin landings have ranged between 56 and 365, with annual dead discards for
the same period varying between zero and 24.
A report prepared by the National Marine Fisheries Servicein 2002, in response to the first petition to list white marlin under the
Endangered Species Act, estimated that U.S. commercial fishermen accounted for
about 5% of overall commercial white marlin mortality, while U.S. recreational
fishermen accounted for about 4% of the overall mortality attributed to their
sector.
NMFS regulations affecting white marlin have become more
restrictive since 2002, but even if we assume that United States’ fishermen are
still responsible for the same share of the species’ mortality, that still
means that 95% of the white marlin killed would be completely unaffected by an
ESA listing.
Thus, it’s hard to argue that the expenditure of time and resources
needed to respond to listing petitions for wide-ranging pelagic species, which
are neither killed in large numbers by U.S. fishermen or present in significant
quantities in U.S. markets, are justified by any possible benefit to the
species involved. Instead, the repeated
filings merely consume scarce agency assets that could be more effectively
utilized in other efforts.
If the petitioners are truly interested in restoring the
ocean to some semblance of its former abundance, their efforts could be put to
far more productive uses.
For example, the Endangered Species Act has provided very
meaningful protections for salmon on both the Atlantic and Pacific coasts.
In New England, listing the Gulf of Maine Distinct
Population Segment of Atlantic Salmon as “endangered” has led to the creation
of the Recovery Plan for the Gulf of Maine Distinct
Population Segment of Atlantic Salmon (Salmo salar), a document now in
draft form which will form the blueprint for the restoration of that salmon
stock. While that recovery plan can’t
protect the Gulf of Maine salmon from all serious threats—gillnetters
operating off Greenland still have the capacity, and likely the will, to doom
the stock—it goes a
long way to remove threats posed by domestic fishermen, agriculture,
aquiculture and habitat degradation.
On the Pacific coast, the Endangered Species Act’s
application to depleted salmon stocks is far more complex, given the multitude
of species, combined with local and seasonal “runs,” some of which are badly
endangered while others remain healthy.
In total, 28
stocks of Pacific salmon and steelhead (sea-run rainbow) trout are listed as
either endangered or threatened, 3 more are being watched as “species of
concern” and 21 are considered healthy.
Arguably, only the Endangered Species Act has the legal
clout to cross multiple federal, agency and state jurisdictions, to promote the
survival of fragile salmon and steelhead populations. No other federal law is capable of addressing
the threats
posed by the multiple dams that deny salmon access to their spawning grounds,
by agricultural interests seeking to rob the rivers of water that salmon need
to survive, by a timber industry that strips vegetation from hillsides and
cause the headwater streams to run too silty and warm to support nesting
salmon.
At the same time, ESA is no panacea. On the Columbia River, for example,
litigation has been continuing for well over three decades, as industries
accustomed to using the river’s water for their own purposes, without regard to
the impact on endangered salmon, and a government bureaucracy dominated by the
Army Corps of Engineers, which serves the industries’ needs, have fought
tooth-and-nail against any suggestion that dams might have to be removed in
order to rebuild salmon stocks.
As recently as last May, a
federal court noted that
“Judge Redden [who had previously ruled on the salmon issue],
both formally in opinions and informally in letters to the parties, urged the
relevant consulting and action agencies to consider breaching one or more of
the four dams on the Lower Snake River. For
more than 20 years, however, the federal agencies have ignored those
admonishments and have continued to focus essentially on the same approach to
saving the listed species…Those efforts have already cost billions of dollars,
yet they are failing…The 2014 [biological opinion] continues down the same well-worn
and legally insufficient path taken during the last 20 years…”
Although nothing is certain, we may yet see one or more dams
removed from the Lower Snake River in order that salmon might survive. Should that ever occur, we can be certain
that it would never have happened had the Endangered Species Act not been there
to protect the fish.
Thus, there is no question that the Endangered Species Act
can play an important role in fisheries management—or, perhaps better stated,
can play an important role when fisheries management fails.
However, both the fish and conservation advocates would
undoubtedly be far better off if less effort was spent trying to apply the law
to species that face their greatest threats outside the jurisdiction of the
United States, and more effort was spent on species, or distinct population
segments of species, that are primarily caught in U.S. waters.
In such cases, managers and conservation advocates can work
together, as they do in the case of Atlantic salmon, to rebuild an imperiled
stock, and avoid the adversary relationship that can arise when petitions are
filed that demand agency action on species that, even under the best of
circumstances, NMFS cannot rebuild on its own.
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