Janis Searles is a staff attorney with the Earth Justice Legal Defense Fund in Juneau, Alaska.


Why have the conservation groups you are representing challenge the National Marine Fisheries Service management regime regarding trawl fisheries in Alaskan water?

There has been a long-time concern on the part of conservationists about the North Pacific ecosystem in general, and specifically Steller sea lions. They’ve declined by over 80 percent in the last few decades and at the same time that the Steller sea lions have been declining, the agency’s been allowing more and more trawling to get concentrated in time and in space, and particularly in designated Steller sea lion critical habitat.

NMFS has done some kind of a dispersal effort, both in terms of time and in area with the pollock fishery, and this is not sufficient?

The agency has taken some measures with regard to the pollock fishery which compromises about half of the overall ground fish fisheries in the northern Pacific, but they have yet to take a look at all the fisheries put together, and so the question is, is the pollock mitigation adequate with regard to pollock alone? And we don’t think so, and the science, we don’t think says that, but then you have the broader question: when you put pollock together with jack and mackerel together with Pacific cod, together with all the other ground fish fisheries, what does that mean for Steller sea lions? And that’s a question the agency has yet to answer.

Some biologists think the impact on the Steller sea lion population is not just due to the result of pollock fisheries — he agrees with you — but it’s the result of a complex of fisheries.

I can respond to one point about that: looking at the overall global biomass, or the overall exploitation rate really doesn’t answer the questions for Steller sea lions. It’s not ‘How many fish are in the sea?’ It’s where you take them, when you take them and how you take them, and so if you just look at the global exploitation rate, you miss a big part of the picture. If they had done that with pollock, you would have missed the concentration and critical habitat, you would have missed these pulse fisheries that happen over a very short period of time and take out massive amounts of fish very quickly, and so it’s only one part of the puzzle. It’s more than just ‘How is the overall fish stock doing?’ It’s how, when and where they are taking these fish.

What do the groups that you’re representing think NMFS ought to be doing to be doing this right?

What’s been happening over time is the agency has continued to allow more and more fishing in critical habitat without asking and answering these fundamental questions about what that fishing means for North Pacific ecosystem as a whole and for Steller sea lions in particular. And what we’d like to see, and what the law requires, is that you understand the impacts of actions that you authorize and before you take those actions. So instead of Steller sea lions bearing the burden of proof, it needs to be the fisheries that bear the burden of proof.

Over time what the agency has done is assume that fishing will go forward and allowed fishing to get more and more concentrated in critical times of the year and in Steller sea lion critical habitat. Instead, we should determine first what level of fishing is acceptable for Steller sea lions and for the ecosystem as a whole and then only permit that level of fishing to go forward.

From the industry’s perspective they shouldn’t be restricted from fishing until it can be proved that they are the cause of the decline of Steller sea lions. From the conservation perspective the proper thing to do is to not do something that maybe damaging until you understand what it’s effects are. Evidence indicates that trawling poses a real threat to Steller sea lions, and it needs to be halted until the agency has done it’s job and complied with federal law and figured out the boundaries of those threats.

How does the ‘precautionary principle’ basically flip the burden of proof?

I guess the question is, when you don’t have absolute proof — and absolute proof is tremendously difficult to come about in a marine ecosystem — who bears the burden? Does fishing need to slow down and be removed from certain places to protect Steller sea lions, or do Steller sea lions have to bear the burden of this uncertainty?

The salmon fishery in Alaska is comprised mostly of small, independent operators. How would you characterize the ground fishery operating in Alaskan waters?

I don’t have a perfectly good answer for that. One of the real frustrations of this case is we don’t have a lot of access to that information. The pollock trawl fisheries are dominated by the larger catcher boats and in particular by the larger factory trawlers; definitely dominated by the larger organized vessels that have a lot of money and a lot of investment in prosecuting this fishery. They take the most.

You know, it’s a wise decision on their part to put the small people forward, but when it comes to down to it, you know, on the political side, on the lobbying side and the council, those guys are sophisticated, they have a lot of money, they have a lot of lobbyists, they have a lot of people working for them and it’s typical big business venture.

Why do you think NMFS hasn’t done their homework; done everything they should’ve been doing to figure out what the impacts from all these fisheries are on Steller sea lions?

I think the National Marine Fisheries Service right now is facing somewhat of an internal conflict and they’re at war with themselves. They have one division that is the Sustainable Fisheries Division that’s devoted to getting out the fish; they have an Office of Protective Resources that’s charged with protecting marine resources. And those two mandates are coming into conflict. They have an overall obligation to preserve the marine ecosystem, but I think what the National Marine Fisheries Service is facing right now is something that the Forest Service has gone through.

For years and years and years they viewed as their primary mission getting out the cut, getting out the trees. And they’re recognizing more and more that forests mean a lot more to people. And they’re trying to provide more and more recreation and other kinds of benefits for the American public. And the National Marine Fisheries Service now is sort of facing the same problem. For years and years and years they’ve focused on getting out the fish. And now they’re having to grapple with the impacts of those choices that they have made in the past and understanding how those affect other marine ecosystem components.

Are the groups that you’re representing merely against the fishing industry or in fact are they really concerned about the long health of the marine ecosystem, upon which the fisheries ultimately depend?

The groups that I represent are clearly interested overall in having a sustainable fishery and a healthy ecosystem. The problem is the agency has not even attempted to ask some of those basic questions of what does a sustainable fishery look like?

One thing about the injunction: the injunction didn’t say you can’t fish — although that was fairly within what we could’ve asked for — it just said you can’t trawl in designated critical habitat. And so it was a limited injunction.

The groups involved in this case are not against fishing. Their long-term goal is to have a sustainable fishery and a healthy ecosystem and in the long run that’s in everyone’s interest. That’s in the fishermen’s interest as well.

Some biologists think that the Steller sea lions are like a canary in a coal mine — basically it’s a sign that there’s something wrong with the way we’re managing these fisheries.

Things have changed radically over the past two decades. Multitude species are declining; Steller sea lions are listed as endangered; the fisheries have gone from being foreign fisheries to joint venture fisheries to domestic fisheries; they’ve concentrated in time and space; huge changes have occurred and NMFS hasn’t taken a comprehensive look at the effects of authorizing all those fisheries.

Ecosystem-based management — that was one of the other pieces of this lawsuit. It’s not just Steller sea lions; it’s not just Pollock; it’s not just jack and mackerel; it’s not single species/single species. It’s the changes that have occurred in the past two decades are huge and the agency’s never stepped back and thought, ‘Well, does our management system make sense, given everything that’s changed from 78-81 until now?’ And so that’s one of the things they have to do.

Some fishery managers at NMFS complain that the suits brought on by environmental organizations are taking up a whole lot of their time. And she feels that they’re overwhelmed by them to the point where they have to devote too much of their energy responding to these suits rather than doing the work they’re supposed to be doing. Can you respond to that?

There are a couple of things to note there. First is that the industry sues the agency a lot more than conservation groups do. Second is that the only reason why we’re creating work for them is because they’re not complying with the law. If we had lost the lawsuit, if they had been complying with the law, if they’d been doing what they were supposed to be doing all along, they wouldn’t be in this crunch where they’re trying desperately to come into compliance with the law. That’s all the lawsuit requires — follow the law.

I think one really basic thing is people look at environmentalists and view them as trouble-makers, and fundamentally what we’re trying to do is a very basic thing, and that’s to require a federal agency charged with managing a public resource to comply with federal law. It’s not an unusual thing; we all have to comply with the law everyday, and that is ALL we’re trying to get the agency to do.

One other thing, reflecting that we’re not against fishermen: I think the plaintiffs would be willing to support some financial assistance to the smaller boats that are being hurt, or are potentially being hurt by this injunction. It’s part of the broader picture. We recognize that for some smaller boats there may be some adverse impacts and we’re concerned about that and we’d be willing to support some financial measures to help them.

One of the outcomes of the litigation is that the National Marine Fisheries Service is getting a lot more money for research, and that’s something that we think should have been happening all along, but it is one of the positive outcomes here — that the agency will have more resources at its disposal to ask and answer some of these fundamental questions.

Do you want to say anything about this pristine environment, compared to New England for instance, since the fisheries here are still in relatively good shape?

I think there’s a tremendous opportunity in Alaska to do the right thing. We don’t want to repeat the mistakes that have been made in other fisheries. Our position is that sea lions are critical and we don’t have a lot of time with regard to Steller sea lions. Alaska is a little bit different than the other fisheries because the fisheries stock themselves. There certainly are some problems with some stocks but it doesn’t quite reach the magnitude of fish problems of other places. The problem up here is integrating fishing with the rest of the ecosystem and making sure that it’s sustainable for everybody, including the marine mammals.