Fish Board to consider ignoring protection

Posted: Tuesday, January 11, 2011

The Alaska Board of Fisheries will consider an emergency petition from the city of Adak to partially disregard fishing closures in state waters. The federal government proposed the closures to protect food sources for Steller sea lions in the central Aleutian Islands.

The board is set to take up the matter at its meeting Jan. 16-19 at the Anchorage Hilton Hotel.

Adak has proposed the board keep the 2010 regulations in place in an area between 178 degrees west longitude and 175 degrees west longitude -- from the middle of Tanaga Island to the western edge of Atka Island -- in state waters within three miles of shore.

The state-managed cod fishery in the Aleutians -- set at 3 percent of the federal acceptable biological catch -- is unaffected by the proposed federal action. What is affected is the parallel cod fishery in state waters, where the catch counts against the federal quota.

It is possible the federal government could reinitiate consultation under the Endangered Species Act if the Board of Fisheries elects to open a parallel cod fishery adjacent to closed federal waters.

Consultation would determine if fishing management creates jeopardy or adverse modification to critical habitat for listed species. While the federal rules to protect Steller sea lion food sources did anticipate that cod removals would continue in the state managed fishery, it sets limits for additional removals that come from federal allocations in the central Aleutians.

According to the ESA, reinitiation of consultation is required "if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion."

For now, the wide-ranging federal closures are in place in state waters after the annual emergency order from the Alaska Department of Fish and Game commissioner that opens the parallel groundfish fishery and establishes management rules that generally mirror federal rules.

Cora Campbell, who awaits confirmation as commissioner, issued the emergency order Jan. 1, but wrote that she "strongly considered" not imposing the federal closures in state waters and "would not have adopted" them but for the fact that the Board of Fisheries will take up Adak's petition in time for fishing to take place.

"Upon the board's adoption of any new regulatory measures, the commissioner will immediately replace this (emergency order) with a new EO implementing the board's direction," the order stated.

The order states Campbell will support adoption of state regulations to allow a parallel cod fishery adjacent to closed federal waters, similar to other exceptions at Cape Barnabas on Kodiak and Caton Island off the south Alaskan Peninsula.

Since 2005, state management by law has generally mirrored federal management for Steller sea lion protection measures and the assumption by the federal government was that statute would apply to the new closures.

However, the latest protection measures have set off a row between the state, the North Pacific Fishery Management Council and National Marine Fisheries Service. In August, the North Pacific council unanimously suggested more surgical closures that were almost entirely rejected by NMFS in October.

NMFS issued an interim final rule Dec. 13 for severe Pacific cod and Atka mackerel closures effective Jan. 1 in the central and western Aleutians based on a theory that fishing is causing nutritional stress for the endangered Steller sea lions and contributing to the population decline. According to NMFS, though, only one of 14 measured indicators supports the theory of nutritional stress.

The state sued NMFS Dec. 14, assailing the scientific basis for the closures as flawed and alleging the federal government didn't follow the legal requirements of the Endangered Species Act, Magnuson-Stevens Act, the National Environmental Policy Act and the Administrative Procedures Act.

As of Jan. 4, no hearing had yet been scheduled in the case.

Under state law, the Board of Fisheries may recognize an emergency as "an unforeseen, unexpected resource situation where a biologically allowable resource harvest would be precluded by delayed regulatory action and such delay would be significantly burdensome to the petitioners because the resource would be unavailable in the future."

Adak selected the area east of 178 degrees west longitude because, according to NMFS' biological opinion, the Steller sea lion populations are growing east of that boundary under current management. The BiOp also states that were it not for the decline in two subregions (central and western Aleutians), the overall population would be considered to be in recovery.

NMFS is now considering a petition from the states of Alaska, Washington and Oregon to de-list the eastern stock of Steller sea lions from the endangered species list based on its growing numbers.

Also at its January meeting, the Board of Fisheries plans to take up another federal request for closing state waters to all groundfishing around Kanaga Island and Ship Rock on Adak Island. Kanaga Island (just west of Adak) has been designated as a rookery, or breeding area, which earns more protection than a haulout, or resting area.

The state manages a small sablefish fishery in the area NMFS is asking to be closed, as well as the state cod fishery.

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