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Alaska Halibut Catch Share Proposal Still Cooking

October 13, 2011

The National Marine Fisheries Service (“NMFS” or “NOAA Fisheries”) recently took a step back from promulgation of a final rule that would have implemented a highly controversial catch sharing plan allocating the lucrative Pacific halibut fishery in southeast and south central Alaska between commercial, sport and subsistence fishermen. The controversy has aggravated tensions between charter boat and fishing lodge owners, Alaskan residents, the tourism industry, and commercial fishermen, many of whom are based in ports in the Pacific Northwest outside Alaska. Citing its initial review of over 4,100 comments on a proposed rule that would have implemented the catch sharing plan, a NMFS official told the North Pacific Fishery Management Council (“Council” or “NPFMC”) at its September meeting that the comments raised technical and policy issues that require additional input from the Council before the agency can move forward with a final rule. These issues include concerns about economic impacts, management at lower levels of halibut abundance, and methods for charter boat operators to lease fishing rights from commercial fishermen. Glenn Merrill, head of NMFS’ Alaska Region division of sustainable fisheries, told the Council that the agency is “still moving forward with the rule-making process, but we are getting some issues clarified and refining the rule based on public comments and additional Council input.”[1] NMFS indefinitely postponed implementation of the plan, throwing the management of the 2012 fishing season into doubt. In a related action, the Council also voted to delay action on potential decreases to the amount of allowable bycatch of halibut for the commercial trawl and longline fisheries.[2]

A Shrinking Resource Caught by Many

Pacific halibut (Hippoglossus stenolepis) are one of the world’s largest fishes and are prized for their mild-tasting and firm flesh. Halibut can grow to 500 pounds and eight feet in length and live to be 55 years old. For approximately the past 15 years, however, halibut growth rates have been depressed to levels that have not been seen since the 1920s, resulting in much smaller fish at any given age. After a dramatic increase in halibut growth rates in the middle of the last century, growth rates started to drop around 1980. For example, in the northern Gulf of Alaska, an 11-year old female halibut weighed about 20 pounds in the 1920s, nearly 50 pounds in the 1970s, and now again about 20 pounds. The reasons for both the increase and the decrease are not yet known but may be tied to increased abundance of other species, such as arrowtooth flounder, and availability of food supply.[3] Exploitable biomass has decreased 50 percent over the last decade.[4]

Fished commercially since the 1800s, halibut are also targeted by sport (both guided and non-guided) and subsistence anglers. The Council recently observed that “[h]alibut is fully utilized in the directed sport, subsistence and commercial fisheries and is of significant social, cultural and economic importance to communities throughout the geographical range of the resource. Halibut [bycatch] allowances are also critical to the prosecution of many groundfish fisheries operating in the [Gulf of Alaska].”[5] Although most of the non-commercial uses of halibut have remained relatively stable, recent growth in the guided sport fishery harvest combined with fixed amounts of bycatch allowed in other commercial fisheries has resulted in fewer halibut available for the directed commercial fixed gear fishery to catch.[6] Declining halibut stocks have aggravated tensions among fishermen while leading management agencies to reconsider established approaches for managing the halibut fishery.

Increasing Regulation of the Sport Fishery

Management of Pacific halibut is coordinated between the United States and Canada. The International Pacific Halibut Commission (“IPHC”), originally called the International Fisheries Commission, was established in 1923 by a Convention between the two countries. The IPHC, which consists of three government-appointed commissioners for each country, considers research plans, biomass estimates, catch recommendations, and management proposals. Each year the IPHC determines the amount of halibut that may be removed on an area-by-area basis in all Convention waters without causing biological conservation problems, and develops catch limits for the commercial fisheries in waters in and off Alaska, which are then forwarded to the respective governments for implementation.

In the United States, the halibut fishery in federal waters is managed pursuant to the Magnuson-Stevens Fishery Conservation and Management Act[7] (“MSA”). First enacted in 1976, the MSA established a system of regional fishery management councils to govern fishing activities, set harvest limits and manage conservation efforts. The councils prepare fishery management plans for finfish, shellfish and crustaceans that are reviewed by NMFS and approved or disapproved by the Secretary of Commerce. In late 2006, Congress significantly amended the MSA, including the addition of a new section setting national requirements for limited access privilege programs (LAPPs).[8] “Catch shares,” one form of LAPPs, are systems which divide up and allocate percentages, or shares, of the total allowable catch of a species to individual fishermen or fishing groups. Catch share programs have the potential to dramatically change who can fish for a particular species and how much can be caught by one fisherman or group of fishermen.[9]

In 1997, the NPFMC adopted guideline harvest levels (“GHLs”) in two Gulf of Alaska management areas, known as Area 2C and 3A, for the guided sport fishery. However, the conduct of the sport fishery was managed only by the IPHC until 2007. The IPHC regulations established seasons and daily bag limits for the sport fishery, and required charter vessels to have IPHC licenses.[10] From 2007 to 2009, the IPHC and the NPFMC recommended, and the Secretary of Commerce adopted, a series of regulatory measures including daily bag limits with a maximum size rule, a prohibition on harvest by the charter vessel guide and crew, and a line limit of six lines per charter vessel.[11] Charter boat operators challenged the 2009 rule in federal court without success.[12]

In 2008, the NPFMC sent a recommended catch sharing program for the guided sport halibut fisheries, that would 1) allocate a combined catch limit between the commercial and sport fisheries in south central and southeast Alaska; 2) implement prospective area harvest restrictions for charter vessel anglers prior to the start of each season; and 3) authorize transfers of commercial halibut harvest rights to charter vessel anglers. This recommendation was the basis for the proposed catch share regulation issued by NMFS in July 2011 that has now been delayed.[13]

At the same time, the growth of the charter fishery resulted in greater and deeply unpopular restrictions on anglers. In 2010, the NPFMC recommended, and the Secretary adopted, a LAPP for the halibut charter boat fishery, with initial permits issued to those businesses with historical and recent participation in the fishery.[14] In Area 2C, the management area in southeast Alaska, the guided sport harvest exceeded the GHL every year from 2004 to 2010. In response, in 2011, the IPHC recommended and the Secretary of State, with the concurrence of the Secretary of Commerce, imposed a daily bag limit in Area 2C of one halibut with a maximum length of 37 inches.[15] In July 2011, NMFS published proposed implementing regulations for a comprehensive catch sharing plan for the halibut fisheries that would further reduce the total amount of catch available to the charter boat fishery while allowing them to purchase shares for more fish from commercial fishermen.[16] State newspapers such as the Anchorage Daily News questioned the proposal’s conservation value, asserting that “the feds haven’t made the case to cut the charter catch in half” given the “huge halibut bycatch” by “industrial fishing fleets” and projected harm to “tourism, the sport fishing economy and the opportunity for Alaskans to catch halibut out of Seward or Homer.”[17]

Proposed New Limits on Bycatch in the Commercial Groundfish Fisheries

In 2010, the NPFMC began considering whether changes were needed to the amounts of halibut allowed as bycatch in the commercial fisheries in the Gulf of Alaska (“GOA”). In March 2010, the IPHC released a report on the potential effects of commercial bycatch (known as prohibited species catch or “PSC”) on declining halibut biomass.[18] The IPHC concluded:

The existing GOA Prohibited Species Cap (PSC) limits have been in place for trawl fisheries since 1986 and for fixed gear fisheries since 1996. The Commission staff believes that these limits were based on inadequate data, that monitoring of both historical and current bycatch mortality is similarly inadequate, and that the PSC limit for trawl fisheries should be reduced as a precautionary measure until the improved observer procedures are implemented, at which time the estimated bycatch mortality levels can be re-evaluated in the context of halibut stock dynamics.[19]

In response, as part of its process to establish annual groundfish harvest limits, the Council began consideration of alternatives that would have reduced PSC amounts by five, ten or fifteen percent.[20] The Council was scheduled to select a preliminary preferred alternative in October 2011, take final action at its December 2011 meeting, and begin implementation of the new limit through the 2012-2013 harvest specifications.[21] Instead, at its September 2011 meeting, the Council abandoned this approach and initiated action to remove halibut PSC limits from the annual harvest specifications process through an amendment to the fishery management plan that governs GOA groundfish fisheries under the MSA. As a practical matter, this procedural switch put the potential PSC reductions on hold until at least 2013, because fishery management plan amendments require a lengthy public process culminating in notice-and-comment rulemaking by NMFS.[22]

Next Steps

Having thrown the catch share program back to the Council and faced with looming deadlines for setting establish harvest limits for the 2012-2013 fishery, NMFS “strongly encourage[d] the Council to schedule time at its upcoming December meeting, or during a special meeting if the Council determines that is appropriate, to consider guidance to the International Pacific Halibut Commission (IPHC) for 2012 halibut management. In formulating that guidance, at a minimum, NOAA Fisheries encouraged the Council to consider the existing guideline harvest level allocation and the suite of management measures developed under the catch sharing plan to manage the charter halibut fleet within its allocation.”[23] The Council responded that it needed clarification from NMFS about exactly what information it needed, and indicated that it would reconsider the catch share proposal at its February 2012 meeting.[24]

The delay itself quickly became the subject of debate. Linda Behnken of the Alaska Longline Fishermen’s Association asserted that NMFS could have resolved the issues that it sent back to the Council, adding “What you’re saying is, the resource is in decline and instead of expecting everyone to reduce their harvest to protect the resource, we’re going to stop and study economic impacts and allow overharvest.”[25] Charter and sport fishing groups indicated that the re-examination of the catch sharing plan was welcome and overdue. Ricky Gease of Kenai River Sportfishing Association stated that “[w]e are happy to see that NOAA and the National Fisheries Service have realized that we need to have a full understanding of the economic impacts of these decisions.”[26] Alaska Senator Mark Begich issuing a statement calling for continued work on the “longstanding, divisive issue” with “some tough decisions to be made in the interim.”[27] He concluded, “Both the commercial and charter halibut sectors are important to Alaskans and the state’s economy. Years of divisiveness between these sectors need to be resolved with a plan which fairly sets allocations, clarifies the rules, addresses each sector’s unique needs, and allows flexibility for changing times. I hope the continued review of this important matter will lead to development of a plan which is fair to all users and works to grow Alaska’s economy and ensure the sustainability of our halibut stocks.”

For more information, contact any member of Marten Law’s Natural Resources practice group.

[1] News release, “NOAA Fisheries asks fishery council to take another look at halibut plan,” September 29, 2011 (last visited Oct. 4, 2011) (“NMFS Halibut Press Release”).

[2] The term “bycatch” means “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program.” 16 U.S.C. §1802(2). The commercial trawl fisheries are allowed to take up to 2,000 metric tons, or 4.4 million pounds of halibut while fishing for other species such as Pacific cod, pollock, rockfish, rex sole and other groundfish. Hook and line groundfish fisheries may take up to 300 metric tons of halibut.

[3] Initial Review Draft Environmental Assessment/Regulatory Impact Review for Proposed Changes to GOA Halibut Prohibited Species Catch Limits (Sept. 11, 2011) (“Draft EA/RIR”) at 24 (last visited Oct. 4, 2011).

[4] North Pacific Fishery Management Council, Revised Draft GOA Halibut Prohibited Species Catch Limit Action Plan (June 22, 2011) (last visited Oct. 10, 2011).

[5] Id.

[6] 76 Fed. Reg. 44156, 44157 (July 22, 2011).

[7] 16 U.S.C. § 1801 et seq., amended by Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (P.L. 109-479).

[8] 16 U.S.C. § 1853a; see also Lame Duck Congress Reauthorizes and Revamps Magnuson-Stevens Fishery Conservation and Management Act, Marten Law Group Environmental News (Jan. 10, 2007).

[9] See Sea Change? NOAA Seeks Public Comment on New Policy for Allocating Fishery Resources, Marten Law Environmental News, (Jan. 6, 2010).

[10] 76 Fed. Reg. 44156, 44157 (July 22, 2011).

[11] 74 Fed. Reg. 21194 (May 6, 2009).

[12] Van Valin v. Locke, 671 F. Supp. 2d 1 (D.D.C. 2009).

[13] 76 Fed. Reg. 44156 (July 22, 2011).

[14] 75 Fed. Reg. 554 (Jan. 5, 2010).

[15] 76 Fed. Reg. 14300 (March 16, 2011).

[16] 76 Fed. Reg. 44156 (July 22, 2011).

[17] Anchorage Daily News, Our view: Move to cut charter bag limit may not help, will hurt for sure (Sept. 17, 2011). Compare, Anchorage Daily News, Keep halibut catch sharing facts in mind (Sept. 19, 2011) (last visited Oct. 21, 2011).

[18] International Pacific Halibut Commission report (last visited Oct. 10, 2011).

[19] Id. at 2-3.

[20] See Draft EA/RIR.

[21] Id.

[22] See Andrew Jensen, Alaska Journal of Commerce, Halibut charter, bycatch issues will get more time, (Oct. 6, 2011) (last visited Oct. 10, 2011).

[23] NMFS Halibut Press Release.

[24] See Andrew Jensen, Alaska Journal of Commerce, Halibut charter, bycatch issues will get more time, (Oct. 6, 2011) (last visited Oct. 10, 2011).

[25] Id.

[26] Michael Armstrong, Halibut plan won’t take effect in 2012, Homernews.com (Oct. 5, 2011) (last visited Oct. 11, 2011).

[27] Press Release, Sept. 29, 2011 (last visited Oct. 11, 2011).

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