YES! Magazine: Tribes seek role in managing ocean habitats in treaty territory

Monday, February 3, 2020  

When it comes to threatened Pacific species, groundfish rarely get the glory. They are not as charismatic as orcas, nor is their life history as inspiring as salmon’s. As seas warm and the threats of climate change take effect, what these bottom-dwellers—and the cultures that depend on them—do have going for them is an incredible and unexpected comeback story.

Historically, the Pacific groundfish fishery was run as a derby—essentially a race for fish. By the 1970s, massive quantities of fish and bycatch were being hauled in via trawl nets all along the coasts of Washington, Oregon, and California. But by the late 1990s, research began to reveal signs of overfishing among groundfish, which includes dozens of species that live near the ocean bottom, such as rockfish, roundfish, and flatfish. Since many of these species are long-lived, they are slow to grow and reproduce, meaning they’re also slow to recover from overharvesting. As the century turned, managers scrambled to close certain areas to fishing and reduce catch limits to prevent collapse.

“The first decade of the millennium, we were in sort of a frantic panic mode trying to gather more scientific information,” says Gretchen Hanshew, a fisheries management specialist at the National Oceanic and Atmospheric Administration. At the same time, NOAA worked to rein in some exploitative fishing practices to make sure they weren’t creating future problems.

Still, in 2001, a coalition of environmental groups sued the federal government to step up the management of overfished species and won. The result was a sweeping closure of fishing areas considered essential fish habitat, many as a precautionary measure. Managers essentially froze the map on trawl fishing until they could get a better handle on what was happening where.

While this protection may sound good on the surface, it was a big concern for both the commercial fishing industry and Native American tribes, which co-manage many natural resources, including fish stocks, in the Pacific Northwest.

The four tribes who exercise treaty rights in this stretch of the North Pacific are the Makah, Quileute, Hoh, and Quinault. Thanks to federal court cases, including Washington v. United States and U.S. v. Oregon, the tribes essentially share the harvestable surplus of any fish stock in their usual and accustomed fishing areas 50/50 with the nonnative fishing industry, both commercial and recreational. This kind of cooperative management between states, tribes, and the federal government is necessary because fish constantly cross the borders between these nations, says Rob Jones of the Northwest Indian Fish Commission. And despite a history of collaboration in the region, these closures did not sit well with the tribes.

“Some of those essential fish habitat closures were placed in traditional fishing grounds without proper consultation,” Jones says, which is “a direct diminishment of the treaty fishing right.” The closures didn’t limit the tribes’ ability to fish per se, because they are sovereign nations not subject to U.S. law. Their rights to fish in usual and accustomed areas are secured by treaties with the U.S. government. but fishing within the closure does create a problem of perception. “This puts the tribes in a really hard spot,” Jones says. In the public eye, he says, this arrangement can sometimes be seen as the tribes harvesting from habitats that require protection—habitats that non-Native fleets are banned from fishing. “Do you go along to get along,” Jones asks, even though the action diminishes tribal treaty rights? 

The protections had broad economic ramifications, too. Jones says that as part of the conservation measures, a huge portion of the continental shelf off the north coast of Washington was closed to trawling because it was good rockfish habitat. That ended up running a few commercial trawlers out of business. Not only did that mean the demise of these fishers, but it meant they were no longer operating out of Neah Bay, which is an important tribal port. By not having as many active fishing boats coming in and out of the port, the Makah tribe was no longer able to fill its processing capacity and lost local business.

The closures worked, however, when considered from a sustainability perspective. NOAA’s Hanshew says the groundfish populations today are much healthier and better understood than they were back in 2000.

Some of that has more to do with natural processes than active management. The ocean conditions in the past decade, for example, have been particularly good for some species of bottom-dwelling groundfish.

Another part of the fishery’s rebound may have been because of simply gaining a better understanding of the fish and their ecosystems. Scientists from the environmental nonprofit Oceana, for example, used remotely operated vehicles to explore the underwater environment and discovered swarms of juvenile baby rockfish swimming in and among reefs of Christmas tree coral. Some of the most commercially valuable fish were found to be dependent on the very corals that environmentalists were trying to protect, laying their eggs on the reefs and using them to hide from predators.

On top of that was a massive amount of data that has come out of a catch-share program implemented in 2011. The program includes a quota system for groundfish and mandatory reporting of all bycatch—that is, everything that gets caught in a trawling net and hauled up by accident. This program reduced bycatch, shifted incentives toward more sustainable practices, and provided a lot more data.

“The amount of information we have on population dynamics and stock biology has probably multiplied 1,000 times since 2000,” Hanshew says. “Back in 2000, we thought it was going to take 70 years to rebuild one of these populations, but then it’s rebuilt in 2017.”

In 2013, the Pacific Fishery Management Council undertook a mandatory five-year review of the essential fish habitat closures. The council is made up of 14 representatives from states, tribes, industry, and environmental groups and is charged with sustainably regulating federal fisheries in the region. The task at hand was to determine whether the original closures were working, if they needed to be redrawn, or if more or fewer closures were necessary. So while the council has the ultimate authority to make decisions, the group decided to issue a request for proposals. “The decision-makers sent a clear message,” says Geoff Shester, a senior scientist at Oceana: “‘You’re probably not going to be as happy if you don’t collaborate.’” That incentive, he says, is what set up these disparate communities for success.

The stakeholders formed a collaborative of environmental and industry representatives that pored over historic catch data, analyzed the topography of the seafloor, and visited trawl ports along the coast, three or four times in some cases, to talk to fishers and find out where they were pulling up coral, for example, and where they have their best hauls.

It was a messy but productive process of back and forth, give and take, according to Shems Jud, who was on the groundfish advisory panel. Jud, who is the Pacific regional director of the Environmental Defense Fund’s U.S. oceans program, says the group was trying to map out where within the active trawl areas were the most sensitive habitats needing protection, and which spots should be opened to the commercial industry, whether because they’re less vulnerable, close to port, particularly productive, or had been closed inadvertently. Tempers flared at times, but the group ultimately carved out sensitive habitats for protection and set aside prolific areas for fishing.

The result is an agreement that was celebrated by stakeholders when it took effect on Jan. 1. Amendment 28, as it’s called, protects about 13,000 square miles of the deep-sea-floor groundfish habitat from bottom trawling and fishing gear that can endanger the sensitive corals and sponges there. At the same time, the amendment reopens 3,000 square miles of previously closed fishing areas.

The tribes declined invitations to participate in the collaborative. Their answer, according to Jones, was, “Thanks, but no thanks. That’s a stakeholder group; we’re not stakeholders. We’re sovereign governments, so we’re going to handle it on a government-to-government basis.”

The tribes did play an active advisory role as members of the Pacific Fishery Management Council. But this time around, the tribes wanted meaningful government-to-government consultation, Jones says, to work with NOAA on any changes within their usual and accustomed areas, and to understand the impacts of those changes before they agreed to anything.

Ultimately, the tribes didn’t agree to any changes. The closures made back in 2006 are still in effect, but at the tribes’ request, the federal government took no action within the usual and accustomed fishing areas of the four coastal tribes. Some tribes didn’t want any changes adjacent to those areas either, but the changes went forward.

While the amendment doesn’t have a direct impact on the tribes’ fishing access, it will definitely affect it. What remains unclear is how. Expansion of a closure next to a tribal fishing ground could drive more people to an area where the tribes fish, Jones conjectures, creating increased competition. Or, equally possible, he says, there could be a spillover effect from having less pressure on a particular stock in an adjacent closure, creating more fish within the tribe’s area. “We just don’t know,” Jones says.

The plan was a decade in the making and has gained broad approval, in large part because the Pacific groundfish populations have seen a phenomenal comeback during that time. “It went from collapse to environmental success story in a fairly short time,” says Yelena Nowak, director of the Oregon Trawl Commission. “That was possible due to collaboration of many different parties—environmentalists, fisheries, industries, and scientists.”

Reflecting on the process that yielded such a successful outcome, Shester emphasizes the power of listening. “Both sides had something to gain by collaborating and sharing information,” he says.

In the end, Shester found that opponents were not actually in conflict, despite their apparently different goals and the polarized political climate of the day. The fishers, for example, suggested some of the new closures, and environmental groups recommended reopening certain areas to fishing.

“We’re truly partners,” Nowak says. “At the end of the day, the way our fishermen look at it, these are family operations, generational businesses. My fishermen are in it for the long run, not the short-term mentality,” she says. “This is just one example of the power of that collaboration. I hope it is an example for others to follow.”

While this outcome certainly wasn’t inevitable, Jud of the Environmental Defense Fund hopes it is becoming less unique. “I’m seeing more openness to this approach from industry and NGO colleagues,” he says. After fostering many relationships over the years on this project, he says, there are two essential ingredients: One, trust that those involved are honest brokers; and two, understanding each other’s goals, even if they aren’t shared.

The compromise is viewed as a rare win-win that could have ripple effects around the country’s coastlines. The oceans are already feeling the effects of a changing climate. That goes for the ecosystems at large as well as the stocks and fisheries that comprise them. Even if we don’t know exactly what future ocean conditions will look like, Jud says, “the more habitat that we can protect that is in good condition, fulfilling its function, and connected to other habitats, the more resilient it will be.”

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Breanna Draxler is the climate editor at YES! She covers all things environmental.

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Note: This article originally appeared on YES! Magazine. It is published under a Creative Commons license.