Tweets,

Another forwarded message regarding seabirds in Washington. Some
interesting perspective here, and I hope that some of you are interested.

Jon. Anderson
Olympia, WA
anderjda at dfw.wa.gov


---------- Forwarded message ----------
Date: Tue, 23 Jan 1996 05:03:20 -0500
From: FISH1IFR at aol.com
To: birdbycatch at pond.net
Subject: Scope of this Working Group

TO: Seabird Network Bycatch Working Group
FROM: Glen Spain (Project Manager)
DATE: 1/22/96
RE: Questions on the scope of this Working Group
------------------------------------------------------------------------------
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Responses to staff should go to: birdbycatch-request at pond.net
Posting to the entire group should go to: birdbycatch at pond.net
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On 1/2/96 we received the following inquiry:

***********
>>Subj: Re: Marbled Murrelet
Date: 96-01-02 12:29:12 EST
From: JAJfish
To: FISH1IFR

I would like to be included in your Bycatch Working Group. I conducted
all of the recent purse seine bycatch work done on seabirds in Puget
Sound. I have also been involved in gillnet efforts. I am a little puzzled
as
to why you are focusing on the marbled murrelet (MM), however. For the
most part the mitigation measures required by the USFWS have been met
by the commercial fisheries. The purse seine fleet has basically been given
a no-impact status and only needs to follow best fishing practices and avoid
high-MM areas. The gillnetters have a multi-year gear experiment in place
which has failed to show a significant impact on MM in the first place,
which is admitted by USFWS biologists. Besides, since MM is covered
under the endangered species act, incidental takes are allowed.

You should be concentrating on the Wash common murre which is covered
under the Migratory Bird Act Treaty and has no allowances for incidental
take. This issue could effect fishermen up and down the coast from Alaska
to California.

Thank you, Jeff June--Natural Resources Consultants, Inc.<<

****************

In response, Jeff raises some very good questions which demand a detailed
and thoughtful response. The marbled murrelet (MM) is the only seabird
on the west coast which is also listed under the US Endangered Species
Act (16 USC 1531, et. seq.) as well as the Migratory Bird Treaty Act
(MBTA, codified at 16 USC 703 -- 711). Other migratory seabird species
are only listed under the MBTA. Jeff is also correct that the ESA contains
within it a process for issuing an "incidental take permit," while the MBTA
is, on its face, a zero-tolerance "strict liability" statute, at least for
misdemeanor violations.

The problem with the MM arises because so much of its onshore habitat
has now been wiped out that the bird is facing extinction altogether in the
lower 48 states. The MM is a seabird which nests ONLY in old-growth
forests in coastal watersheds. The vast majority of the US Pacific
Northwest's native old-growth forests are now gone or so fragmented by
clearcut timber harvests that the MM is barely holding on as a species.
Furthermore, recent Congressional actions have completely overridden
ALL EXISTING US ENVIRONMENTAL LAWS in order to increase
timber harvests (the so-called "timber salvage rider"). This law virtually
guarantees that up to 40% of the last already highly fragmentary old
growth habitat of the MM still left in the Pacific Northwest will soon be
clearcut. This has set off a political firestorm throughout the region and
unfortunately may be the final coup de Gras for the MM in the lower 48.

In Canada and Alaska (where substantial intact stands of old-growth
forests still exist) the MM is doing much better and could in no way be
considered endangered. These populations are thriving.

Nevertheless, the result of this intense pressure on the species because of
decades of the deliberate destruction of its habitat in the Northwest is that
a
great deal of additional effort needs to be undertaken by net fishermen
(particularly in the Puget Sound area of Washington State, where the MM
still occurs) to avoid what under other circumstances would, in terms of
sheer numbers of birds, be only very minor impacts. With the MM so few
in numbers, ANY additional impacts from the fisheries need to be avoided
in every way possible. The ESA also requires those efforts to be made as a
matter of law on an emergency basis.

With other bird species in this area the situation is vastly different. The
much larger population numbers of other species (such as the common
murre) mean that there is simply far more management leeway to avoid
population-level impacts. While I hasten to add that this is in no way a
justification for failure to reduce bycatch of the common murre (and all
other species as well), the reality is that there is much less of a crisis
with
other species. Our job is then to become proactive to prevent any such
crisis in the future by using what we have learned taking emergency
measures for the MM and applying those lessons to these other species as
well. This is one reason the MM is given a higher priority in the project.

Another reason is this: The ESA contains within it citizen civil
enforcement provisions, while the MBTA is purely a criminal enforcement
statute. Suits have already been brought against the commercial fishing
industry based on alleged ESA violations for other species which -- at their
heart -- were politically motivated and brought primarily for the purpose of
dividing commercial/recreational interests or fishing/environmental
alliances for the political gain of other industries. This is the case, for
instance, with several suits recently brought against commercial fishing
groups by hydropower users on the issue of ESA required salmon
protections in the Columbia River. The irony is that these suits were
brought by the very industries which have caused or benefited by much of
the habitat loss driving these species toward extinction.

The ESA (on the marbled murrelet in particular) can thus be a "wedge"
issue used by others in order merely to attack the commercial fishing
industry for their own political gain. ESA related issues are also the
political "hot button" for most of the natural resource conflicts of the
region.

The MBTA, as a purely criminal statute, can only be enforced by the
federal government. It is also very unclear whether it can be enforced in
situations (such as legal fishing) where every effort is being made NOT to
entangle seabirds, where there is clearly no criminal intent to actually kill
seabirds in violation of the law, and where other federal agencies regulate
and allow that same activity. At least one court has refused to enforce the
MBTA against activities that are otherwise legal (in this case the spraying
of pesticides on a field which unintentionally killed migrating geese) but
which also caused the death of protected birds (US vs. Rollins, 706 F.
Supp. 742, 744-45 (D. Idaho, 1989). There is also the potential conflict
between the MBTA's absolute prohibition on "take" versus the Tribal
treaty rights of various sovereign Tribal Governments who under a long
line of US Supreme Court cases have a guaranteed right to fish secured by
long standing treaties. Setting up a conflict between these two Treaties
would likely damage both as enforcement tools in the future for the
protection of natural resources.

The MBTA is a powerful tool for the protection of migratory birds against
harmful acts generally, but it may be very unwise to test its limits too far
in
court against activities that are otherwise legal under other federal laws,
and where there is a clear intent NOT to harm seabirds. The way to avoid
that conflict is to reduce incidental bycatch of protected seabirds to the
point where it is not a significant problem.

Because of these legal anomalies, the threat of major closures to the fishing
industry from MBTA protection of seabirds is simply less than the threat
from ESA mandated protections for the MM at this point in time.

With limited resources, we have simply chosen to address the most
pressing problems first. We also want to avoid taking on more than we can
accomplish. It is better to make real impact on solving a portion of these
problems than to spread ourselves so thin we accomplish too little.

THIS DOES NOT MEAN THAT THE PROJECT WILL EXCLUDE
WORK TO REDUCE BYCATCH TO THE COMMON MURRE OR
OTHER AFFECTED SEABIRDS. Far from it. In fact, it is the ultimate
goal of this project to help minimize and (to the extent possible) eliminate
ALL incidental seabird bycatch within the US Northwest. This work can
also draw upon (as well as assist) the effort to reduce seabird bycatch in
many other places in the world. Our information gathering system and
archives, for instance, will be generally applicable to all seabird bycatch
problems, not just those of the Pacific Northwest.

As a result of Jeff's thoughtful comment, our stated initial scope for this
Project has been amended to dealing with the marbled murrelet and "other
related species." As we get up and running, and as we are able to obtain
additional funding, there are several areas of seabird bycatch which we
would like to address -- including potential problems with common murres.

We would certainly appreciate any comments on the above analysis, as well
as any suggestions you may have for the scope of this Project

-- Glen Spain
(Project
Manager)