Fishermen’s News June 2014

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By Zeke Grader, Dave Bitts

A Federal Register notice went out in late January, 2014 seeking comments on alternatives to a harvest control rule for winter-run Chinook salmon “impacted by the ocean salmon fisheries.” In February a bill was introduced in the California Legislature to ban the use of drift nets for the catch of swordfish offshore the state, including the fishery in federal waters.

On the surface, to a disinterested observer, both of these actions — consideration of a federal regulation (79 Fed Reg 15, January 23, 2014, pp. 3783-85) and a proposed state statute (AB 2019, Fong, et al.) — appear to be reasonable fishery conservation measures that predictably are opposed by industry.

In the first instance a harvest control rule seems only prudent; it is necessary for the protection and recovery of the first Pacific salmon to be listed under the Endangered Species Act (ESA) — Sacramento winter-run Chinook.

The second is a measure to do away with the use of ocean drift nets, a gear type the United States and United Nations have both worked to ban on the high seas, as well as in the Mediterranean. This gear has been described as a “curtain of death,” and an “indiscriminate killer,” with over two-thirds of what was caught in the swordfish driftnet fishery being bycatch.

The problem is that what is visible to the public on the surface sometimes belies the truth below. That was certainly the case here, as we explain, and it is an object lesson on the need to look beyond an action’s label to examine both its substance and its likely effects.

The Winter-Run Conundrum

Winter-run Chinook are a run of Pacific salmon unique to the Sacramento River whose spawners entered the fresh water environment during the winter, remaining in the Sacramento-San Joaquin Delta and Sacramento River until they spawned in the upper reaches of the Sacramento River — now inundated by Shasta Dam and its reservoir — in deep canyons fed by snow melt from Mount Lassen percolating through the lava soil to provide the cold water needed in the heat of summer for spawning, incubation and rearing.

Most, if not all, of their spawning habitat was lost following construction of Shasta Dam. This remnant of what was once the Central Valley’s second largest salmon run (the spring-run was the largest) thereafter utilized habitat in the mainstem of the river below Shasta and Keswick dams, where there were cold water releases still in mid-summer before the Bureau of Reclamation contracted for the delivery of all the reservoir’s yield. From a population of 110,000 spawners in 1969, winter-run Chinook numbers fell precipitously until only 189 spawners could be counted in 1991.

When the winter-run were first proposed for ESA listing in the mid-1980?s, with a population of around 400, the National Marine Fisheries Service opposed it, instead setting up an alternative “10-Point Plan” that (with exception of the fishing restrictions) was voluntary and totally unenforceable. The plan predictably failed, and NMFS was subsequently forced to list the run in 1990. Following that, fishing restrictions were expanded beyond the in-river sport fishery to encompass both the recreational and commercial ocean salmon fisheries.

From the first petition to list it was recognized that the significant factors affecting winter-run abundance were not fishing related, but centered on lack of cold water in the upper river (which forced the construction of a temperature control device at Shasta Dam), ineffective and fish killing screens at Glen-Colusa and Anderson-Cottonwood diversion intakes (two of the largest diverters on the upper Sacramento), poor passage at the Red Bluff Diversion Dam, and Delta water exports.

Most of the fishing restrictions were placed on the recreational fishery, since winter-run (because of their smaller size) were taken in smaller numbers in the commercial fishery. A shorter recreational season was set south of Point Arena and size restrictions were imposed on anglers.

While Klamath fall-run Chinook were the main constraining factor on the commercial salmon fishery, winter-run concerns led to less liberal fishing seasons south of Point Arena than would have been available were the fishery constrained by the Klamath alone. Under that harvest control rule, which allowed a 20 percent ocean take for about fifteen years, zero correlation between fishing mortality rates and winter-run populations appeared.

Winter-run numbers began to rebound following ESA listing, due to temperature standards set for the upper river, new screens at GCID and ACID, the lifting of the gates at Red Bluff during winter-run migration, and constraints on state and federal project pumping when baby winter-run were present in the Delta, coupled with a captive broodstock program and a new conservation hatchery (Livington Stone National Fish Hatchery at Keswick Dam). All that progress, however, was undone in the early years of this century when NMFS’ own fishery scientists were overruled and Delta pumping was cranked up.

As a result of increased Delta pumping, especially following the adoption of the joint state and federal projects’ “Operations Criteria And Planning (OCAP)” scheme in 2004, winter-run numbers began falling rapidly.

In 2005, PCFFA and a number of fishing and conservation groups sued to protect winter and spring-run (also then ESA-listed), PCFFA v. Gutierrez (606 F. Supp. 2d 1122). PCFFA prevailed and NMFS was directed by the federal Court to write a Biological Opinion (Bi-Op) for the protection of these listed fish migrating through the Delta estuary.

The 2009 NMFS Biological Opinion rewrite on Delta water operations found that continuing the status quo, i.e., high levels of water export, would “likely” jeopardize the continued existence not just of winter-run, but also of Central Valley spring-run salmon, steelhead, and sturgeon. “Likely” means more than a 50 percent chance of extinction; compare that to the roughly 5 percent level of moderate risk from fisheries.

“Reasonable and Prudent Alternatives” (RPAs) were adopted in the BiOp for the protection of winter-run migrating through the Delta. However, NMFS, following the 2009 opinion, and likely due to pressure from water contractors, proceeded to develop new and more restrictive harvest control rules for the fishery even though it could not be shown that fishing effort was threatening winter-run with extinction or impeding their recovery.

The current control rule has had a significant impact on fishing, but made only a marginal difference in the level of risk to the winter-run from fishing. As a result, fishermen requested consideration of less restrictive alternatives that would still minimize fishing impacts on winter-run. The Pacific Council and many commercial and sport fishing groups have now coalesced around what is known as “Option 4.”

The difference in risk between the current control rule and Option 4 is a one or two percent increase, from about 4 to about 6 percent, in the level of moderate risk to the winter-run over a hundred years. But the difference in the effect of the chosen rule on fisheries is substantial: in 2013, the sport fishery lost twelve days and the commercial fishery lost 28 days below Point Arena due to the existing rule. The direct cost to fishermen was in the many millions.

Where NMFS will take all this (the comment period ended 23 April) we have no idea, but the difference for the salmon fishery is huge, with little difference in conservation. The more restrictive control rule appears more aimed at placating vociferous water contractors than at saving fish.

Indeed, while NMFS was requesting comments on its harvest control rule it was waiving all protection for winter-run at the Delta pumps. In March, NMFS approved pumping in excess of the OMR (Old and Middle River) requirement in the salmon Bi-Op, and in April, NMFS approved pumping in violation of the San Joaquin River inflow:export ratio in the salmon Bi-Op.

In other words, while all the hand-wringing was taking place over harvest control rules with negligible conservation benefits, NMFS once again, as it had done in 2004, caved to the water contractors, placing not only the winter-run but the salmon fishery both at risk of extinction.

Picking On California Driftnets

Meanwhile, in the California Legislature another “conservation” measure was in play. A group called the Turtle Island Restoration Network (TIRN) and Oceana were pushing a bill (AB 2019) to completely ban the California swordfish driftnet fishery, and even preclude any testing of alternative swordfish net fishing gear.

California, due to opposition from recreational billfish fishermen, has had a longstanding prohibition on longlining for swordfish. The driftnet fishery, began in the late 1970’s for thresher shark, had a large bycatch of swordfish, which could legally be taken in the nets and sold. As more was learned of the life history of both threshers and swordfish, it was found that thresher catch had to be limited, but swordfish were relatively abundant.

The driftnets in question are not the kind 35 miles or more used on the high seas by IUU fleets that were devastating to marine life. Early on, the length of the nets in this fishery were limited to one nautical mile with one end always attached to the vessel.

While the nets are selective, due to their large mesh size, for adult swordfish, they are not as selective as gillnets used by salmon fishermen in the Northwest or Alaska, nor by herring fishermen on San Francisco Bay. Nevertheless the driftnet fleet has worked tirelessly to avoid marine mammals, sea turtles and prohibited fish species; large areas of the ocean have been closed to avoid bycatch.

As a result of these targeted time and area closures, and use of multi-frequency “pingers” to ward off marine mammals, this fishery has made huge advances in reducing bycatch. Indeed, the claims made by TIRN and Oceana of catches with 67 percent bycatch are patently false, since many of the non-target fish are marketable and most of those that can’t be kept are returned to the water alive and unharmed.

According to NMFS (18 December 2013 letter of Dr. Francisco Werner, Director, Southwest Fisheries Center to California Natural Resources Secretary John Laird), the dead discard rate in this fishery is 11 percent, not the 67 percent claimed by AB 2019 supporters.

All this is not to say there have not been problems. The fishery had been a Category III fishery under the Marine Mammal Protection Act until, extrapolating from the unfortunate take of two sperm whales in 2010, it was reclassified as Category I.

Yet California driftnetters want to make their gear more selective, not only to avoid the occasional whale, but finding ways to avoid sea turtles to enable opening of vast ocean areas north of Monterey now closed — but that selective gear research has been thwarted by the actions of TIRN and various other groups it enlists.

TIRN has made it clear it doesn’t want driftnets or longlines, no matter how clean the gear can be made, even if avoiding all turtle encounters. It has also engaged in consumer campaigns aimed at stopping consumption of swordfish and tuna because of mercury. Thus, their claims that they would support harpooning as an alternative are fallacious, given that they’re trying to destroy the market for swordfish altogether.

In the meantime, meaningful steps at achieving more sustainable fisheries for swordfish are being thwarted or ignored. These include domestic experiments to make driftnets and longline gear more selective, closing domestic markets to swordfish imports from unsustainable foreign fisheries, aggressive efforts internationally towards ending destructive IUU longline fishing, and better protecting non-fish bycatch species ranging from marine mammals to turtles to albatross.

AB 2019 is dead for this year; it failed passage on 29 April in the Legislature’s Assembly Water, Parks & Wildlife Committee. But it was a close vote and similar bills could pop up again. It is a sharp lesson to fishermen on the need to educate the public and policy makers on fishing issues while at the same time working harder to protect the ocean environment and conducting fishing in the most environmentally friendly ways possible.

If we don’t, faux conservation could take us completely off the water.

Zeke Grader is the Executive Director of the Pacific Coast Federation of Fishermen’s Associations (PCFFA), and can be reached at PO Box 29370, SF, CA 94129-0370, (415)561-5080 x224 or Email: Dave Bitts is a commercial salmon and crab fisherman based in Eureka and President of PCFFA. Email: