INTERNATIONAL COUNCIL FOR BIRD PRESERVATION

Thedangers of gill nettingto seabirds

Natasha Arkins and Burr Heneman

Seabird mortality in gill nets has had significant biological . .! and legal consequences

thousands of porpoises drowned UBLICannuallyOUTCRY in tunaOVER purse THE seinesMANYdur- ing the 1960s and early 1970s spurred the passageof the Marine Mammal Protection Act in 1972. During this same period, the public was less aware of similar "incidental takes" ofseabirds in netsset for other fishspecies. In fact, becauseso many different bird species are taken in a variety of geartypes, the number of birds drownedfar surpasses the mortality of marine mammals. De- spite various migratory bird treaties, which are designedto providelegal pro- tection for both landbirdsand seabirds, the treatiesand their implementinglaws Fishermenin the northAtlantic removedrowned shearwaters caught in their gill nets,June have not generallybeen applied. 1983. Photo/TonyDeGange.

Volume41, Number 5 1395 This paper provides an overview gill nets is correlatedwith seabirdden- sites in 1982), and Atlantic Puffins of fishery/seabird conflicts in North sitiesand feedingmethods (Ainley et al. (Fraterculaarctica) only 0.2%. Piatt and American waters, and reviews the bio- 1981). For this reason, alcids, which Nettleshipsuggest that a substantialre- logicaland legal aspectsof two specific dive for prey and often feed in large duction of these numbers, without cases.The casestudies are of two very concentrationsnear breedingcolonies, closingthe fisheries,is possiblebased differentfisheries in whichthe takingof are commonly caught in gill nets. In on current knowledge of the fisheries seabirds has been well-documented-- westernGreenland, salmongill netsare and seabird behavior. the Japanesesalmon mothership fishery estimated to have taken 200,000 or The recentdiscovery that bottom-set in the North Pacific and the gill and more Thick-billedMurres (Uria lornvia) netsin deepwater can still take signif- trammel set net fisheries of central and annually in the early 1970s. Piatt and icant numbers of seabirds is a result of northernCalifornia. The first is a large, Reddin (1984) estimatedthat this rate the Newfoundland studies. Common offshorefishery conducted by a foreign was reduced by 80-90% in 1976-1980 Murres have routinely been observedin country; the second,a coastal fishery when fishing efforts diminished and nets retrievedfrom depthsas great as consistingof numerous independent shifted.However, recentchanges in the 180 meters and Atlantic Puffins are United States fishermenusing small fisherymay have resultedin significant commonly seen in nets set in water 60 vessels. mortality increases. meters deep. In Canada, seabird mortality in the A salmondrift net fisheryin Barkley Newfoundland salmon drift net and cod Sound,British Columbia, wasestimated bottom-set fisheries is the best studied to have killed more than 6% of the (Piatt et al. 1984; Piatt and Nettleship breeding population of Marbled Mur- SEABIRD/FISHERY CONFLICTS 1985, 1987). Speciesmost affectedwere relets (Brachyramphusmarmotus) in IN GREENLAND, CANADA, AND generally those that were abundant, 1980 (Carter and Sealy 1984). THE UNITED STATES formed large aggregationsat breeding With the exception of Japanese coloniesand nearby feedingareas, fed salmon drift net fisheries and California Alcids, shearwaters,albatrosses, wa- heavily on capelin, and were capableof setnet fisheries,information on seabird terfowl, cormorants, loons, and even deep diving. Piatt and Nettleship esti- mortality in gill and trammel-set net Osprey have all reportedly been mated that from 1981-1984, 2% of operations in United States waters is drownedin fishing.operations. Birds are Newfoundland's 800,000 Common largelyanecdotal. Salmon fishermenin caughtin nets, traps, and fishingline, Murres (Uria aalge) were drowned in Puget Sound, Washington, report but the gear that most frequently netseach year. Local populations,how- catchingbirds in their nets, and Com- tanglesthem is gill nets which are used ever,suffered a mortality rate as highas mon Murre carcasseshave washedup to target a variety of commercial fish 16.3% annually. The small Razorbill on beaches,but there are no data on the specieson the east and west coastsof (Alca torda) population suffered an magnitude of the bycatch. In south- North America (Croxall et al. 1984). alarming 12.4% annual mortality, eastern Alaska, Marbled Murrelet mor- Research on various fisheries has NorthernGannets ( Sula bassanus)2.1% tality in nets has been reported(Sealy demonstratedthat bird entanglementin (but over 9% at one of three breeding and Carter 1984), and other speciesare likely taken as well. The potential for seabirdentangle- ment in gill netsalong the Pacificcoast is considerable.Uchida (1985) reports more than 7000 salmon gill net boats in United States waters and another 3800 boats that fish at least once each season off British Columbia. Several fisheries on the east coast re- portedly take severaldifferent bird spe- cies. Anecdotal information exists on the incidental catch of Northern Gan- nets,Northern Fulmars(Fulmarus gla- cialis),and SootyShearwaters (Puffinus griseus)in New England bottom fish fisheries(O'Hara, Atkins, and Iudicello 1986), and in ChesapeakeBay, gill nets have been observedentangling Ruddy Ducks (Oxyura jamaicensis), Canvas- backs (Aythya valisineria), and scaup (Aythyasp.) (O'Hara, Atkins, and Iud- icello 1986). In South Carolina, water- fowl and loons are the primary bird speciescaught in 900-1200-foot-long gill nets used to catch shad. Loons are Thisdrawing of a gill net illustrateshow the net is "set"---thenet is anchoredin placewhile reportedly caught in Great Lakes gill floatskeep the netsvertical in the water.Illustration/Paul Wild, Fish & WildlifeService. nets as well.

1396 AmericanBirds, Winter 1987 Japanesesalmon mother ship. Photo/David Ainley.

NORTH PACIFIC DRIFF made from research nets with variable Data were collectedby United States NET FISHERIES meshsize (Sano 1978;King et al. 1979). observersfrom 1981-1984 (DeGangeet King et al. estimatedan annual mor- al. 1985).During thisperiod, 21 species Japanesesalmon mothership fishery tality of 75,000to 250,000birds. Ainley of seabirdswere caught (Table 1). et al. (1981) determined that these es- Shearwaters, particularly Short-tailed The most controversialand perhaps timateswere conservativebecause they Shearwaters(Puffinus tenuirostris) and beststudied fishery, with respectto in- did not account for geographicvaria- Tufted Puffins (Fratercula cirrhata) cidenta!bird take, is the very largeJap- tionsin catchrates or the variabilityof made up the bulk of the bycatch.Other anese salmon fishery off Alaska, the catch ratesdepending upon mesh size, speciestaken in appreciable numbers only foreigndrift net fishingoperation and because estimates did not include were Horned Puffins (Fratercula cor- in United States waters. Originally, drowned birds that fell free of the nets niculata), Thick-billed Murres, and public attention focusedon the bycatch during retrieval. They observedthat Crested Auklets (Aethia cristatella). of marinemammals, particularly Dall's catch rates varied logarithmically with DeGange et al. (1985) estimated that Porpoises(Phocoenoides dalli), but the distancefrom the Aleutians(where the an average of 38,000 Tufted Puffins, fishery'smassive bird killshave recently birds nest) and were particularly high 8249 Horned Puffins, and 101,500 becomea key issuein the federalgov- within 50-75 nautical miles of the is- Short-tailed Shearwaters were killed ernment's permit review and in legis- lands. Bird mortality rates were also annually in the mothershipfishery. An- lation introduced in the United States highestin the mesh sizesused in com- nual overall mortality ranged from Congress. mercial nets. These observations led 96,000 to 251,400, 80% of which oc- In 1983, the mothershipfishery con- them to conclude that previous mor- curred in United States waters. sisted of four processingvessels, or tality ratesshould be at leastdoubled. DeGange eta/. concludedthat the motherships, and 172 catcher boats. In 1981, the Japaneseapplied for a removal of tens of thousands of birds The fishery operatesprimarily in the permit under the Marine Mammal annually would not have a significant United States Fishery Conservation Protection Act to take marine mam- impact on the overall population of a Zone, off the westernAleutian Islands, mals in the course of fishing in the species,but that the impact on local during June and July. Drifting gill nets United States Federal Coastal Zone. breeding populations could be signifi- averaging16.5 kilometersin lengthare Negotiations prior to the permit ap- cant. In 1986, the United States Fish fishedat night. Fishingeffort for 1983 proval included a provision for direct and Wildlife Service asserted that "local was estimatedto be 127,710 kilometers observationsto be made by United populationsof a few nestingspecies in of net set(Shima 1985).Most netshave States personnel aboard the catcher the western Aleutian Islands, particu- a stretched mesh size of 130 millimeters boats. Earlier observations had been laxlyTufted Puffins,have probably been (Uchida 1985). limited to Japanese research vessels negativelyaffected by the salmon fish- The first estimates of seabird mor- whosenet setswere designedto mimic eries" (Department of the Interior tality in the mothershipfishery were thoseof the commercialfishing ships. 1986).

Volume 41, Number 5 1397 Table 1. Number and percentcomposition of seabirdskilled in gill netsof the Japanese as the United States three-mile limit salmonmothership fishery within the U.S. FisheryConservation Zone, 1981- (Department of the Interior 1981). This 1984. opinion is disputed by environmental Species Number Percent organizations(Center for Environmen- tal Education 1986). Laysan Albatross 14 0.1 The Department of Commerce Northern Fulmar 331 1.4 sued a permit to the Japanesein May Sooty Shearwater 62 0.3 1987, allowing them to take manne Short-tailed Shearwater 12,086 51.6 mammals during their salmon fishing Unidentified shearwater 2,227 9.5 operations (Calio 1987). The permit Fork-tailed Storm-Petrel 145 0.6 contained no provisionsdealing with I•ach's Storm-Petrel 12 0.1 Pomafine Jaeger 2 0.1 seabirds.This decisionwas largely based Black-leggedKittiwake 11 0.1 on the recommendationsof the agency's Dovekie 1 0.1 administrativelaw judge, who presided Common Murre 216 0.9 over the hearings. Thick-billed Murre 541 2.3 The judge assertedthat while the Unidentified murre 212 0.9 taking of seabirdsin such numbers PigeonGuillemot 2 0.1 "unacceptable," the Department of Ancient Murrelet 211 0.9 Commerce has no jurisdiction to en- Cassin's Auklet 39 0.2 force regulations concerning seabirds Parakeet Auklet 95 0.4 under the Marine Mammal Protection Least Auklet 26 0.1 Crested Auklet 751 3.2 Act. The judgealso chose not to include Unidentified small alcid 74 0.3 seabirds in the ecosystem argument, Rhinoceros Auklet 3 0.1 claiming that the relationship between Tufted Puffin 5,124 21.9 seabirds and marine mammals is too Horned Puffin 1,107 4.7 indirect and that seabirds are "more Unidentified puffin 95 0.4 than one trophic link removed" from Unidentified bird 35 0.1 marine mammals (Dolan 1987). If the Department of Commerce had Source:DeGange, A. R., D. J. Forsell,and L. L. Jones1985. acceptedthe responsibilityfor enforcing certainprovisions of the Marine Mam- mal Protection Act, it could have in- The Japaneserenew their permit and Their Environment, prohibits the cluded restrictive clauses protecting incidental taking of seabirds.Eighteen seabirdsin the Japanesepermit. For ex- In 1986, when the Japaneseapplied of the 21 speciescaught in the mother- ample,DeGange et al. (1985) estimated for a permit renewalallowing them to ship fisheryoperation are protectedby that modifyingthe netsby removingthe take marine mammals in United States the Convention. lower portionscould reducealcid mor- waters, it appeared that the Marine The Convention also recognizesthe taility 16%with only an 8% reduction Mammal ProtectionAct might alsoaf- delicateecological balance of islanden- in fishingefficiency. ford some protection to seabirds.The vironments and provides that each The most effective way of reducing Marine Mammal Protection Act re- party "shall endeavorto establishsanc- the impact of the fishery on seabirds quiresthat full considerationbe given tuaries" and shall "seek means to pre- would be to placegeographical restric- to the effect of such a permit on the vent damageto suchbirds and their en- tions on it (Ainley et al. 1981). Reid marine ecosystemand on existingin- vironment, including especially,dam- (1986) calculatedthat banningthe fish- ternational treaty obligations. "The ageresulting from pollutionof the seas." ery from a 60-nautical-mile zone health of marine bird populationsaf- The high catch rates of birds off the around the Aleutian Islandswould sig- fects,and is affectedby, the health of Aleutian Islandsand the largequantity nificantlyreduce its impacton breechng fish stocksand marine mammal pop- of discardedor lost drift net generated alcidswithout having a detrimentalef- ulations... Part of the reason seabirds by the fishery appearsto violate this fect on the fishery.During the permit are entangledis that they sharesome of clause. review,the Marine Mammal Commis- the same food sources as marine mam- One of the final argumentsmade by sion had recommended the creation of mals and fish" (Center for Environ- environmentalgroups at the hearing a 60-mile net-free zone around the mental Education 1986). involvedthe MigratoryBird Treaty Act. Aleutians. The administrative law During the permit hearing,although Environmentalistsargued that the tak- judge, however,argued that sincethe most of the testimonyfocussed on ma- ing of seabirdsviolated the Act, which zone would primarily benefit seabirds, nne mammals, environmentalists also implements the Convention with Ja- it wasnot a "sufficientor appropriate" arguedthat the permit shouldbe denied pan. While the Department of the In- reason for him to support the recom- owing to the extent of incidentalseabird terior acknowledgedthat the "inciden- mendation (Dolan 1987). mortality. Testimonyemphasized that tal take of migratorybirds by Japanese In his final decision, the administra- a bilateral agreement between the fishermen,as well as United Statescit- tive law judge soughtto establishwho United Statesand Japan,The Conven- izens, is a violation of the Migratory had jurisdiction under the Migratory tion for the Protection of Migratory Bird Treaty Act," they contendedthat Bird Act over the area in question.Ac- Birdsand Birdsin Dangerof Extinction the Act'sjurisdiction extends only as far cordingto the judge, the United States

1398 American Birds, Winter 1987 claims "sovereign rights for the pur- posesof exploring,exploiting, conserv- ing, and managing natural resources, both living and non-living, within the Exclusive Economic Zone (EEZ)," which extends200 miles. Therefore,the judge concluded that it would be "within the United States' internation- ally recognizedauthority" for the De- partment of the Interior, which has statutoryresponsibility for seabirds,to exerciseits jurisdiction beyond the three mile limit. The Department of Com- merce, however,rejected the adminis- trative law judge's conclusionthat the Department of the Interior has regula- tory authority to limit the Japanese salmon fishery under the Migratory Bird Act (Calio 1987). Halibutgill netboat with Common Murre drownedin net.June 1982, Stinson Beach, California. Photo/Burr Heneman. OtherNorth Pacificfisheries

The impact of all types of drift net fisheriesis significantlygreater, although more speculative,than just the mother- ship fisheryoperation. Japan also op- eratesa land-basedsalmon fisherythat deployedabout 125,000 kilometersof net in 1983 (Shima). In offshorewaters, fishingmethods, fishing efforts, and the compositionof the seabirdbycatch are similar to thoseof the mothershipfish- cry. Annual mortality in the offshore portion of the fisheryhas been estimated at 171,000 seabirds(Sano 1978) and 134,000seabirds (DeGange et al. 1985). These estimates'are probably low be- causethey are derived from catchesin research nets with variable mesh sizes (Ainley et al. 1981; DeGange et al. 1985). The Japanese, Korean, and Tai- wanesesquid drift net fisheriesin the North Pacific comprise the largestgill net fishery in the world. Compared to the combined mothership and land- based salmon fisheries,the squid fish- eries have a season that lasts three times longer,uses twice the number of vessels, and deploy nets that are twice as long (approximately30 kilometersaverage). In 1983, Japanesesquid vesselsalone setalmost one million kilometers of net, almostfour timesthat of the mothership and land-based fisheries combined (Shima 1985). Unfortunately,information on sea- bird mortalityin the squidfishery is very limited (DeGange et al. 1985; Ignell et al. 1986; L. L. Jonespers. comm.). In 1983, research vesselscollected data This LaysanAlbatross and immature TuftedPuffins eloquently illustrate the problemswith from a few researchnets set in the Jap- ghostnets in the North Pacific.Photo/Tony DeGange.

Volume 41, Number 5 1399 anesesquid fishing area and in 1985- THE CALIFORNIA SET NET many of the new fishermennot only 1986, United States observersmoni- FISHERIES: A PROBLEM used longer nets, but used them more tored a few commercial squid net sets, SOLVED intensively. In addition, a shift from where seabirdbycatch was almost ex- twine to monofilament nets seemed to clusivelyshearwaters. The gill net problembecame obvious increase the number of birds and mam- Consistent with the lower seabird in California when thousands of Com- mals taken. densitiesobserved in the squid fishing mon Murres and Sooty Shearwaters The nets used in these fisheries are areas,mortality rateswere much lower began stranding on Monterey Bay "set," or anchoredin placewith the lead than in the salmon fisheries. It is un- beachesin 1981.A horrifiedpublic soon line restingon the bottom. The float line clear, however, whether these lower learned that the nets were also taking keepsthe 10- to 20-foot-high net panels catch ratesmight be offsetby the much marine mammals, including the Cali- vertical in the water. The stretched greaterlevel of effortin the squidfish- fornia Sea Otter (Enhydra lutris), a meshsize is usually8 inchesfor halibut/ ery. If one extrapolatesfrom the limited threatened species under the Endan- flounder and 2.75 inches for White data--a highly speculativecalculation, geredSpecies Act. Croaker. Fishermen prefer to use these to be sure--anywhere from 30,000 to In 1982, the problem spreadnorth to nets in waters shallower than 10 fath- 400,000 seabirdsmay have been killed the Gulf of the Farallones (Sonoma, oms (60 feet), but various regulations in eachof the yearsin which net obser- Marin, San Francisco,and San Mateo have causedthem to fish in waters up vations were made. This range illus- counties), where the most heavily af- to 15 fathoms(90 feet). tratesthe hazardof drawingconclusions fected specieswere Common Murres, Between 1981 and 1986, estimatesof from minuscule samples, in this case Harbor Porpoises(Phocoena phocoena), gill nettingimpacts on wildlife became data collectedin a few daysor weeksof and Harbor Seals (Phoca vitulina). increasinglyrefined. In 1981, basedon a several-month-long season, from a Beaches littered with dead seabirds and a modest at-sea monitoring program small area of the vast North Pacific marine mammals attracted media at- and beached bird data, the California squidfishery, and from, at most,30 net tention, causedpublic outcry, and gen- Department of Fish and Game made a setsin a fishery with over 30,000 sets erateda climate generallysupportive of very roughestimate ofseabird mortality each season.The data do suggestthe restrictingthe fisheries. in Monterey Bay--about 20,000 birds need for a much more serious moni- Factors contributing to the conflict (40% Common Murres, 40% shearwa- toring program. between the fisheries and wildlife were ters, and 20% cormorants, s½oters,and "Ghost fishing" by lost or discarded a sharp increasein the number of gill PigeonGuillemots, Cepphuscolumba). nets is another cause of seabird mor- net fishermen in the halibut/flounder In 1983, more intensiveat-sea mon- tality. Basedon observationsof birds fisheriesand a new gill net fishery for itoring in the Gulf of the Farallonesre- retrievedin ghost nets and on loosees- White Croaker ( Genyonernuslineatus), suitedin a mortalityestimate of 25,000- timates of lost net, roughly in the whichcontributed heavily to the seabird 30,000 Common Murres, about 12- neighborhoodof 68,000 seabirdsmight take. In someareas, the number of fish- 14% of the breeding population in the bekilled duringthe firstmonth of ghost ermen increased 400-500% and actual Gulf. Although the California Depart- fishingby unrecoverednets. fishingeffort increased even more since ment of Fish and Game estimated that the annual mortality had declined to 6000-8000 in 1984, 1985, and 1986, this reduction was almost matched by a precipitousdrop in the breedingpop- ulation. Despite the fact that this was empiricallyobvious in 1984, it was not documented until late 1986 when cen- sus data from the United States Fish and Wildlife Service and the Point Reyes Bird Observatory in California, indi- cated that the murre population in the Gulf of the Farallones had declined from approximately210,000 in 1982to about 90,000 in 1986. Therefore, even thoughabsolute mortality waslower, it still represented7-9% of the breeding population. By 1985, the California Department of Fish and Game esti- mated Harbor Porpoise mortality at 200-300/year, most of it occurringin the Gulf of the Farallones. Much less was known about the size of the Harbor Porpoisepopulation than that of the murre population, but it was widely suspectedthat the mortality wasgreater Immature TuftedPuffin taken in a salmondrift net. Photo/DavidG. Ainley. than the population could sustain.

1400 American Birds, Winter 1987 The road to a solution

Prior to 1985, federal agencieswith management responsibilityplayed no role in solving the gill net problem. Neither the United States Fish and Wildlife Service nor the National Ma- rine Fisheries Service would move to enforceprovisions of the Migratory Bird Treaty Act or the Marine Mammal Protection Act, or, in the case of sea otters, the Endangered Species Act. Unofficially, the position of the man- agement staffat theseagencies was that since the fisherieswere state-managed and conducted in state waters, the so- lution was up to the state.Enforcement staff also said that it was impossibleto BobBoekelheide examines tourres drowned in gill netsin DrakesBay, California in thesummer get convictions in casesof incidental of 1982 to ascertainages and sexes.Photo/Joanne Young takes. For three years,the non-governmen- conflict continued, with seabird mor- The California Department of Fish tal organizationsaccepted the reluc- tality higher than it had ever been in and Game found itself in a difficult sit- tance of the federalagencies to get in- Monterey Bay. However, the 1982 law uation. Although the provisionsof the volvedand acquiescedin their approach alsogave the Director of California Fish Migratory Bird Treaty Act and the Ma- to reducing incidental take. This was and Game the authority to temporarily rine Mammal Protection Act and the partially successful,as reflected in the closeareas to gill net fishingif he de- EndangeredSpecies Act were incorpo- decliningrates of incidentaltake. Credit termined that "mortality in any local rated into statelaw, the Departmentwas for theseinitial successesgoes to the two populationof any speciesof seabirdor not eager to enforce them if federal setsof regulationsthat were signedinto marine mammal is occurringat a rate agencieswere unwilling to do so. Short law in 1982 and 1984. that threatensthe viability of the local of closing down the fisheries, there The 1982 law permanently prohib- population, as a direct result of the use seemedto be no way to use thesepro- ited gill nettingin Monterey Bay in wa- of gill nets." tections. The Department's position tersshallower than 10 fathoms,virtually Environmental organizations suc- wasthat gill nettingwas a legalactivity; ending the taking of seabirdsthere. cessfullypersuaded the California De- if there wasa problem,it waswilling to Conflicts with sea otters continued until partment of Fish and Game to impose experiment to find the least restriction 1985 when the gill net closure was ex- closuresfor three seasons(1982-1984) necessaryto reduce incidental take to tended out to 15 fathoms. In the Gulf in areas where the most obvious con- some undefined "acceptable levd." of the Farallones,the wildlife/gill net flicts with mammals and seabirds were These regulations,however, would re- quire legislation. Throughout the controversy,the role of non-governmental organizations such as Friends of the Sea Otter, Point Reyes Bird Observatory,the Monterey Peninsula, Marin, and Golden Gate Audubon societies,the Whale Center, and the California Marine Mammal Center,has been critical. They provided their own gill net impact data, helped interpret agencydata, encouragedthe California Department of Fish and Game to conduct an adequate moni- toring program,raised private fundsto supplement the Department's moni- toring budget, negotiated regulations that were incorporatedinto severalbills (all of which they lobbied successfully through the legislatureand acrossthe governor's desk), pressured federal agenciesto become involved, and kept Large numbersof CommonMurres drownedin gill nets m summer 1980. Thesetourres, their membersand the public informed presumablyremoved from a net,had beentied together and weightedfor disposal.When they through newsletters and the news washedup on a centralCalifornia beach, they were discovered by Point Reyes Bird Observatory media. BeachedBird Surveyvolunteers. Photo/Burr Heneman.

Volume 41, Number 5 1401 occurnng Data from the Point Reyes merce to enforce the provisionsof the b•t•on on gfil netting north of Point B•rd Observatoryand from the Cahfor- M•gratoryBird Treaty Act and the Ma- Reyes,a 40-fathom closurefrom Point ma Academyof Sciences,as well asthe rine Mammal Protection Act in regard Reyes to Afio Nuevo (just north of California Department of Fish and to the California gill net fisheries. Santa Cruz), and a 3-mile closure Game's monitoring program were used In 1986, the biological,political, and around the Farallon Islands and Noon- to justify the closures.However, these legalapproaches allmeshed. In August, day Rock. These closures are year- temporaryclosures were unsatisfactory. the California Attorney General in- round and permanent. All parties are Everyoneinvolved anticipatedan end- formed the Director of the Department confidentthat if the new regulationsare less cycle of temporary closures,fol- of Fish and Game that there was "an observedand enforced,the problem of lowed by a massivebird kill, followed unequivocalprohibition againsttaking seabird and marine mammal inciden- by a CaliforniaDepartment of Fishand [of seabirdsand Harbor Porpoises]un- tal take in the Gulf of the Farallones Game hearing, followed by another der State and federal law." The moni- will end. temporary closure. Negotiations be- toring program conductedby the Cal- tween the California Department of ifornia Department of Fish and Game F•sh and Game, the fishermen,and en- indicated that the murre bycatch con- CONCLUSION vironmentaland scientificgroups led to tinuedin the 6000-8000/year rangeand the 1984 law that created a permanent an analysisof Point ReyesBird Obser- California patchworkof seasonaland areaclosures vatory and Fish and Wildlife Service •n areaswhere high conflictbetween the data suggestedthat roughly75% of the Crucial to solving the problem of fisheriesand wildlife was predictable. drastic decline in murres could be at- seabirdand marine mammal mortahty Commercial fishermen wanted to tributableto gill netting.The California in gill netsin Californiawas recogmt•on believe that the problem had been Department of Fish and Game esti- on both the state and federal levels that solved,but by early 1985,it wasalready mated that Harbor Porpoisemortality the incidental take of seabirds and ma- apparentto the scientificand environ- continued at 200/year, mostly in the rine mammals.violated the Migratory mental groups that the new closures Gulf of the Farallones. The National Bird Treaty Act aswell asstate law. The were inadequate. The California De- Marine Fisheries Service studies on the strict, unequivocal provisionsof the partment of Fish and Game wanted to Harbor Porpoise indicated that the EndangeredSpecies Act (in regardto wait for the results of a season or two population could not sustainsuch high sea otters in Monterey Bay), and the of monitoring. For the scientificand mortality levels. Migratory Bird Treaty Act (in regardto environmental groups, documenting In September,the Fish and Wildlife seabirdsin the Gulf of the Farallones), the disastrous decline in the murre Service met with representativesfrom and equivalent state laws were critical populationat the Farallon Islandsand the California Department of Fish and to the final resolution in these two areas at nearby coastalbreeding siteswas a Game, the National Marine Fisheries However, without sound monitonng chfficultand lengthyprocess. Fishermen Service,the Marine Mammal Commis- data demonstratingthe existenceof a werealso doing a betterjob of disguising sion, and non-governmental organiza- biologicalas well asa legalproblem, and mortality: on severaloccasions, bags of tions to discuss the situation. Both the without a serious effort to cushion the dead murres washed ashore on San National Marine Fisheries Service and impact of regulationson the fishermen Francisco area beaches. It was clear that the Fish and Wildlife Service conceded and fisheries,a satisfactoryresolution a new approach was necessaryto gain the need for action based on the bio- would not have been possiblewithout additional protection for seabirdsand logical information and the legal re- litigation. marine mammals. quirements. The Marine Mammal Protection Act In February 1985, five California Despite this favorableturn of events, has been only moderately effective •n congressionalrepresentatives wrote to a protractedseries of meetingsbetween addressingthe incidental take of p•n- the United States Fish and Wildlife Ser- the various agencies, environmental nipeds and cetaceansin offshorefish- vice and to the National Marine Fish.- groups,and sport and commercial fish- eries in the United States Federal eriesService expressing concern about ing organizationswas necessaryto reach CoastalZone. Becauseof the provision the gill nettingproblem and askingwhat agreement on a new package of per- for the incidental take of most manne the federalagencies planned to do about manent regulationsfor the Gulf of the mammals, it was a less effective con- •t A year later, when this correspon- Farallones(January 1987). The diffi- servation tool in California, although dence had failed to elicit an adequate culty was that the regulations had to the National Marine Fisheries Service response,the environmentalorganiza- survive the legislativeprocess. Failure finally objectedto the level of Harbor tionsenlisted legal help for the firsttime. in the legislatureleft litigation as the Porpoisebycatch. After preparingan analysisof federal unpleasant, expensive, and time-con- and state law, local organizations re- suming alternative. Consequently,the quested that the California Attorney environmental organizationsput con- Northern Pacific General render an opinion to the Cal- siderableeffort into winning the support ifornia Department of Fish and Game of the fishermen,primarily by negoti- Although it did not get the desired on its legal responsibilitiesin regard to ating provisions,such as low interest result during the Japanesepermit re- the incidental take of seabirds and Har- loans, that would help affectedfisher- view, provisionsin the Migratory B•rd bor Porpoises.At the sametime, several men get into alternative fisheries. Treaty Act may yet provide an avenue local and national environmental or- The regulations in the 1987 bill, for solving the severe seabird/fishery ganizations made a formal request to which the governorsigned into law in conflict in the salmon mothershipilsh- the secretaries of Interior and Com- September 1987, include: total prohi- ew. The Act clearlyprohibits the taking

1402 American Birds, Winter 1987 of seabirds Envlronmentahsts still CENTER FOR ENVIRONMENTAL ED- O'HARA, K, N ATKINS and S IUDI- maintain that the Act is applicable UCATION 1986 In the matter of pro- CELLO 1986 Marine wfidhfe entangle- w•thin the 200-mile Federal Coastal posedregulations to governthe taking of ment in North America. Center for En- marine mammals incidental to commer- Zone. Whether or not the Department vironmental Education, Washington, cial salmonfishing operations. U.S. De- D.C. of the Interior will exercise its discretion partment of Commerce, NOAA/NMFS, PLATT, J. F. and D. N. NETTLESHIP to prosecuteover the seabirdtake or use Docket No. MMPAH-1986-01. Testi- 1985.Diving Depthsof Four Alcids.Auk its regulatoryauthority to controlit still mony. December 3, 1986. 102:293-297. remains unresolved. CROXALL, J.P., P. G. H. EVANS, and __. 1987. Incidental Catch of Manne During the mothershipfishery permit R. W. SCHREIBER. 1984. Status and Birds and Mammals in FishingNets Off review, members of Congressbecame Conservation of the World's Seabirds. Newfoundland, Canada. Marine Pollu- tion Bulletin, Vol. 18-6b. concernedwith the driftnet problem. In International Council for Bird Preser- vation Technical Publication No. 2. PLATT, J. F., D. N. NETTLESHIP, and W 1986 and 1987, legislationwas intro- DeGANGE, A. R, D. J. FORSELL, and THRELFALL. 1984. Net-mortality of duced specificallyaddressing the impact L. L. JONES. 1985. Mortality ofseabirds common murres and Atlantic puffins •n of drift nets on Alaskan seabirds. One in the high-seas Japanese salmon Newfoundland, 1941-1981. In D. N of the bills, authored by Senator Ted mothership fishery 1981-1984. Unpub. Nettleship, G. A. Sanger, and P F Stevens of Alaska, would create a 60- Rept. U.S. Fish and Wildl. Serv., An- Springer (eds.), Feeding ecology and mile drift-net-free zone around the chorage,AK. commercial fisheries relationships of DEPARTMENT OF THE INTERIOR. marine birds. Can. Wildl. Serv. Spec westernAleutian Islands(as suggested Publ. pp. 196-206. by the researchof Ainley et al.) and 1981. Unpub. Memorandum from the Office of the AssistantSolicitor, Fish and PLATT, J. F., and D. G. REDDIN. 1984 provide for the monitoring of drift nets Wildlife to Office of Migratory Bird Recent Trends in the West Greenland outside of the United States Federal Management, March 27, 1981. Salmon Fishery, and Implications for Thick-billed Murres. In D. N. Nettlesh•p, Coastal Zone. __. 1986. In the matter of proposedreg- As attention has increasingly fo- ulationsto govern the taking of marine -G. A. Sanger,and P. F. Springer(eds), mammals incidental to commercial Feedingecology and commercialfisheries cussedon the seabird bycatch in the relationshipsof marine birds. Can. Wfidl salmon fishing operations.U.S. Depart- salmonmothership fishery, that conflict Serv. Spec. Publ. pp. 208-210. has taken on the statusof a major test. ment of Commerce, NOAA/NMFS, Docket No. MMPAH-1986-01. Com- REID, W. J. 1986. In the matter of proposed regulationsto governthe takingofmanne case. In the meantime, it is becoming mentson the draft environmentalimpact mammals incidental to commercial increasinglyclear that if neither a leg- statement. November 28, 1986. salmon fishingoperations. U.S. Depart- islative nor an administrative solution DIAMOND, S. L, and D. A. HANAN. ment of Commerce, NOAA/NMFS, can be found, the answermight be de- 1986. An Estimate of Harbor Porpoise Docket No. MMPAH-1986-01. Testi- termined in the courts. However, the mortalityin CaliforniaSet Net Fisheries, mony. December 3, 1986. April 1, 1983 through March 31, 1984. California precedent allows some op- SANO, O. 1978. Seabirds entangled •n National Marine Fisheries Service, Ad- timism that the legalalternative will not salmon driftnets. Enyo 30:1-4. ministrative Report SWR-86-15. be necessary. SEALY, S. G. and H. R. CARTER. 1984 DOLAN, H. J. 1987. In the matter of pro- In J.P. Croxall et al. (eds.),Status and posedregulations to governthe taking of Conservation of the World's Seabirds marine mammals incidental to commer- International Council for Bird Preser- ACKNOWLEDGEMENTS cial salmon fishingoperations. U.S. De- vation Technical Publication No. 2 p partment of Commerce,NOAA/NMFS, 737. Docket No. MMPAH-1986-01. Rec- The authors would like to thank SHIMA, K. 1985. Summary of Japanesenet ommended decision of the ALJ. March fisheries in the North Pacific ocean. In S David Ainley, Suzanne Iudicello, and 6, 1987. Shomuraand H. O. Yoshida (eds.),Pro- Warren King for their helpful com- HANAN, D. A., S. L. DIAMOND, and ceedingsof the workshopon the fate and ments on the manuscript. J.P. SCHOLL. 1986. An Estimate of impact of marine debris,26-29 Novem- Harbor PorpoiseMortality in California ber 1984, Honol.ulu, Hawaii. U.S. Dep Set Net Fisheries,April 1, 1984 through Commer., NOAA Tech. Memo. NMFS, March 31, 1985. National Marine Fish- NOAA-TM-NMFS-SWFC-54. p. 252 LITERATURE CITED edes' Service, Administrative Report UCHIDA, R. N. 1985. Types and Estimated SWR-86-16. AINLEY, D. G., A. R. DeGANGE, L. L. Amounts of Fish Net Deployed in the JONES, and R. J. BEACH. 1981. Mor- __. 1986. ms. A Preliminary Estimate of North Pacific. In S. Shomura and H O tality of seabirdsin high-seassalmon gill- Harbor PorpoiseMortality in California Yoshida (eds.),Proceedings of the work- nets. Fish. Bull. 79:800-806. Set Net Fisheries,April 1, 1985 through shop on the fate and impact of manne CALIO, A. J. 1987.In the matterof proposed December 31, 1985. debris, 26-29 November 1984, Hono- regulationsto governthe takingof marne IGNELL, S., J. BAILEY, and J. JOYCE. lulu, Hawaii. U.S. Dep. Commer, mammals incidental to commercial 1986. Observationson High-SeasSquid NOAA Tech. Memo. NMFS, NOAA- salmonfishing operations. U.S. Depart- Gill-Net Fisheries,North Pacific Ocean, TM-NMFS-SWFC-54. p. 37. ment of Commerce, NOAA/NMFS, 1985. U.S. Department of Commerce, Docket No. MMPAH-1986-01. Decision NOAA Technical Memorandum NMFS of the Undersecretary.May 14, 1987. F/NWC- 105. CARTER, H. and S. G. SEALY. 1984. KING, W. B., R. G. B. BROWN, and G. A. Marbled murrelet mortality due to gill- SANGER. 1979. Mortality to marine net fishingin BarldeySound, British Co- birds through commercial fishing.In J. -- Centerfor Environmental lumbia. In D. N. Nettleship, G. A. San- C. Bartonekand D. N. Nettleship(eds.), Education, 1725 DeSales St., NW, ger, and P. F. Springer (eds.), Feeding Conservation of marine birds of northern ecologyand commercial fisheriesrela- North America. U.S. Fish and Wildl. Washington,DC 20036 (Atkins), 35 tionships of marine birds. Can. Wildl. Serv.,Wildl. Res. kept. No. 11,pp. 195- HorseshoeHill Road, Bolinas Star Serv. Spec.Publ. pp. 212-220. 199. Route, California 94924 (Heneman)

Volume 41, Number 5 1403 Broad-wingedHawk (Buteoplatypterus). Illustration/Julie Zickefoose.

1404 AmericanBirds, Winter 1987