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Oregon Crab Fishery Faces Regulatory Changes

Crabbers question response to California's lawsuit-spawned measures


December 1, 2019

Oregon's Dungeness crab fishermen find themselves entangled in a regulatory conundrum over whales, facing difficult decisions on how best to chart a course through the flotsam and jetsam of "known knowns, known unknowns, and unknown unknowns" just as the new season looms on the horizon.

Oregon's Dungeness crab fishermen find themselves entangled in a regulatory conundrum over whales, facing difficult decisions on how best to chart a course through the flotsam and jetsam of "known knowns, known unknowns, and unknown unknowns" just as the new season looms on the horizon.

At issue is the reported sharp rise in the number of whale entanglements along the Pacific Coast during the past few years, with several of those whales verified as having been caught in Oregon Dungeness crab fishing gear. Few, if any, crabbers are happy about the situation, but most realize they must become proactive to avoid what some consider a potential "death knell" for Oregon's most lucrative fishery.

Discussions led by fishery managers from the Oregon Department of Fish and Wildlife (ODFW) during four mostly civil, yet notably contentious sessions held in October centered on the suggested short-term measures approved by the Oregon Fish and Wildlife Commission in September. Fishery managers outlined the state's proposed measures to crabbers, port officials, and others in Coos Bay, Brookings, Astoria, and Newport, then solicited their input on which recommendations they preferred, or what they would suggest as potential alternatives.

Knowing they were operating from a perceived adversarial position, fishery managers emphasized the need for collaboration to determine the best "risk reduction" measures that would mitigate the entanglement issues, yet maintain the fishery's economic viability.

"Everyone who cares about this fishery is scared about the future, about keeping this fishery alive and well and economically viable," Caren Braby, manager of ODFW's Marine Resources Program, told those gathered at the Newport session. She noted that developing whale entanglement mitigation measures, both short-term and long-term, "is the right thing to do. Oregon has based its (commercial fisheries) success on doing the right thing for decades."

Unfortunately, the whale in the room at each session was what many crabbers consider draconian measures imposed on California's fishery by the state's fish and wildlife managers stemming from the March settlement of a lawsuit initiated against the California Department of Fish and Wildlife by Phoenix, Arizona-based Centers for Biological Diversity (CBD) in October 2017.

Legal woes for CDFW

California's commercial crab fishery operates from Morro Bay north to the Oregon border, split between central and northern management areas, with the Sonoma-Mendocino county line as the dividing marker. The commercial season in the central management area generally opens November 15 and ends June 30, while the northern section typically opens December 1 – the traditional opener for Oregon and Washington – and ends July 15.

Unfortunately, after having their opener delayed until January 15 this past season, California crabbers were scuttled by a statewide fishery closure on April 15 – almost three months earlier than normal – as stipulated under the terms of the settlement agreement reached in March between CDFW and CBD.

It requires crabbers and others using set fishing gear in California to mark all gear, and for CDFW leaders to quickly get a federal conservation plan and permit in place. Agency officials said it is the first time ever for the agency to apply for a federal permit to protect endangered marine mammal species. The agreement also stipulates closing the crab fishery on April 1 in 2020 and 2021, and requires CDFW to develop habitat conservation plans and monitor areas off the central and northern California coasts where whales feed along their spring migration route to determine whether earlier closures are warranted. If NOAA officials identify more than 20 whales in an area, fishery managers must order an immediate closure.

Because the culprit of entanglement is not on the crab pots, but the rope lines attached to them, fishery closures would not apply to crabbers who use rope-less gear – a technique that fishery managers say is still experimental.

Noah Oppenheim, executive director of Pacific Coast Federation of Fishermen's Associations said the settlement avoided the even worse possibility of a court injunction that "would have ended fishing entirely" until the state obtains a federal "incidental take" permit under the Endangered Species Act – a process that fishery managers say can take as long as five years, with no guarantee of success.

Environmental organizations and fishermen share a general antipathy in their perspectives on fisheries and ocean management, and the outcome of this lawsuit only exacerbates that dichotomy.

Whale of an issue

Braby said CBD's attorneys based the lawsuit on a spike in confirmed whale entanglements between 2013 and 2018, and "that the CDFW was allowing the fishery to continue out of compliance by not mitigating entanglements."

NOAA Fisheries confirmed 46 whale entanglements in Pacific Northwest waters in 2018. Of those, 24 were identified with specific fisheries or gear type, including seven humpbacks with California commercial crab fishery, five (three gray, one humpback) for the Washington commercial fishery, and two (one gray, one humpback) for the Oregon commercial fishery. One humpback was entangled by an unknown source of commercial crab gear. Of the remaining nine, two humpbacks were tangled up in California prawn fishery gear (one commercial, one recreational), and seven (three grays, four humpbacks) were entangled by gillnet fishery gear.

"Gray whale entanglements were reported primarily in the winter and spring months, while humpback whale entanglements were primarily reported in the summer and fall, generally reflecting the annual migration of these species," NOAA's 2018 annual summary noted.

In September, CBD leaders announced that whale entanglements off the Pacific Coast had declined by almost 50 percent during the first eight months of the year compared to 2018, and credited the early closure of the California commercial crab season for the drop. NOAA reported 17 confirmed entanglements in California, Oregon and Washington waters. Only two of the 10 California entanglement reports – both humpbacks in August – involved commercial crab gear. Three humpbacks were caught up in Oregon and Washington commercial crab gear.

While getting lines out of the water reduces entanglement risk, fishery managers and crabbers believe other factors are also involved, but until state managers obtain federal approval of the incidental take permit (ITP), the fishery is governed by the provisions of the legal settlement. Permit approval would allow commercial crabbing to continue in California, even if it causes the occasional loss of an endangered marine mammal, but CDFW must first have sufficient habitat conservation plans and fishery management rules in place.

Braby said that's a motivating factor behind Oregon's attempt to set up mitigation measures and put a conservation plan into motion.

But whale entanglements are only one concern of the commercial Dungeness crab fisheries that still thrive off the coasts of Oregon, California and Washington. Fishery managers and crabbers point to concerns about climate change, altered ocean conditions, algal blooms, and biotoxins, along with the usual factors, such as weather and the normal ebb-and-flow nature of crab populations.

Researchers note that the ocean's rapidly changing chemistry and physical conditions are already taking a toll on commercial fisheries by altering the distribution and abundance of marine species and ecosystems. Temperature and oxygen level changes directly impact fish and shellfish, changing their migration, spawning and feeding patterns, as well as their abundance and distribution. Alterations in temperature, oxygen levels and food availability would also likely alter distribution and abundance of other species, such as whales.

Distribution changes affect catch composition, leading to unwanted by-catch of endangered species and other problems, including political conflicts over fishing in certain regions as species migrate to more favorable conditions – or legal actions by environmental protection groups.

The bottom line focus for crab fishery managers and fishermen is a combination of marketability, profitability, and sustainability.

Oregon crabbers consider theirs "a progressive fishery," but say they already face what many of them perceive as regressive – even oppressive – rules and mandates that are pinching the life out of the fishery and the crabbers, crew members, their families, and communities that depend on it. The failure of price negotiations has become a trend during the past four or five years, adding another layer of uncertainty in what is already a risky, daunting business.

Veteran crabber John Corbin, a member of the Oregon Dungeness crab Commission (ODCC), said concerns about low meat yields and heightened domoic acid levels in some areas led to the latest-ever start date in northern California, Oregon and Washington in 2018-2019. Such delays adversely affect fishermen, especially those with smaller boats. Every day idling in port means no product and no money to cover operation costs, let alone make a profit. The effect ripples through coastal communities, adversely impacting processors, wholesalers, retailers, restaurants and other marine-connected businesses. It also rips the social fabric of fishing communities, especially those families who depend on the sea for a living.

Even so, fishery managers say the whale entanglement issue is not something crabbers can ignore.

If the number of whale entanglements spikes or simply rises steadily, fishery managers say it will give organizations like CBD "leverage," because any harassment of an endangered whale constitutes an illegal "take" under the Endangered Species Act, which includes heavy penalties unless NOAA Fisheries has issued an ITP for the fishery – something Braby and Troy Buell, the State Fisheries Management Program leader, say the federal agency has never yet done for endangered whales.

With all of this in mind, Oregon Sea Grant folks started a collaborative Oregon Whale Entanglement Working Group (OWEWG) in May 2017 "to develop and prioritize options for short- and long-term modifications to gear and fishery practices to reduce the risk of whale entanglements in Dungeness crab gear and other fixed gear fisheries." Collaborating with NOAA, California, and Washington officials, the crab fishery, and the Oregon State University Marine Mammal Institute, the group sought ways to minimize the risks of whale entanglements in crab fishing gear.

Fishery managers developed a package of risk reduction measures derived from OWEWG's efforts and presented those to the OFWC for initial approval in September. Braby, Buell, and Kelly Corbett – ODFW's Commercial crab Project leader – presented those options to crabbers and solicited feedback from them.

Going Through Changes

The initial required changes that go into effect immediately for the pending season were relatively minor: registration of commercial crab gear buoy colors and patterns, and required electronic submission of all commercial crab (bay and ocean) fish tickets by the end of the next business day after a crab landing is made to "improve efficiency and effectiveness of, and compliance with, recalls, embargoes, closures, and/or evisceration orders due to biotoxin events" by making near real-time data available on harvest location.

The OFWC also adopted a revised Tri-State Protocol "to allow more flexibility in where and when the season opens based on meat quality" by establishing more than two areas with different opening dates, and moving the latest season opening date to February 1 (only if meat quality is still less than 23 percent and fishery managers have no other concerns).

The proposed short-term entanglement risk reduction measures were more difficult for crabbers to fathom.

Recommendations include a late season pot limit reduction across all tiers (200, 300, or 500 pots) and permits, and separate seasonal buoy tag. Options were to reduce all pot limits by 30 percent on either April 1 or May 1, or to reduce all pot limits by a different percentage, or a flat across-the-board reduction to 200 pots. Braby also mentioned a season-long 10 percent across-the-board pot reduction (December to August) Initiating a late season derelict gear removal program, allowing ownership of retrieved pots, and permanently eliminating the two-week gear clean-up grace period after the season ends, meaning crabbers must pull all gear out of the water by the traditional end of the season on August 14 are also part of the equation.

Other recommendations include a late season derelict gear removal program, allowing ownership of retrieved pots, requiring line markings, and eliminating replacement tags, beginning in December 2020.

Additional measures for crabbers to consider are defining maximum length and number of buoys allowed for use in surface gear (already in place in California), and requiring taut lines (under consideration in Washington).

Alternatives to the recommended actions include closing the season April 1, May 1, or June 1, or closing the season April 1, then re-opening May 1 with a late season buoy tag.

Braby and Corbett also presented potential long-term risk reduction measures for the crabbers to ponder: late season limited entry, near real-time vessel monitoring, depth closures, whale hotspot closures, pot limits along the entire Pacific coast, permit stacking, longlining (two pots), a buy-back program, and gear modifications, such as breakaway devices and rope-less gear.

Divisive and Derisive

Braby said a survey conducted by Oregon Sea Grant revealed "a divided fleet" with mixed feelings about the proposed measures.

Crabbers at the Newport session echoed that divide to some extent, but most offered dissent about what many deemed as being "reactive" out of fear of environmental groups to "stave off the potential" of a lawsuit for Oregon rather than being proactive as Oregon usually is. One fisherman bluntly noted, "Oregon is a leader, so why are we following California and Washington?" A few mentioned the safety factor and added pressure to make bad decisions: reductions in pot limits and looming season closures could pressure crabbers, who already "take a lot of chances and a lot of risks" into taking even more risks, because mortgage payments and other expenses don't disappear along with the lost fishing opportunities.

Most saw only another piece of an already shrinking and embattled livelihood about to drift away. They commonly view environmental folks and the regulators who must enforce their ventures as pirates who take from the fisheries and give nothing back.

Seasoned fisherman Bob Eder, skipper of the F/V Timmy Boy, realizes that a single bad outcome blamed on crab fishing gear can cause a public relations and marketing nightmare for the fishery. Crabbers, he noted, find themselves in the position of having to do something "to remain viable businesses." He mused that longlining crab pots might be a good option "to eliminate a lot of lines in the water" – the ultimate aim of the fishery managers and OFWC.

"This fishery is going to change, anyway, due to climate and ocean changes," he said.

Justin Yager is part of a Newport fishing family that owns three boats and has been in the crab fishery for more than 20 years.

In a written comment to the commission, Yager – who served as part of the whale entanglement working group – noted that the "entanglement issue" has loomed "for about a decade," and he urged everyone to take the issue seriously. "From the beginning, we have been told by NOAA that we need to come up with solutions or someone else will come up with a solution for us," he noted.

He asked the commission for "a range of options," including consideration of whale biology of whales and when they arrive at their summer feeding grounds, as well as crab biology and the economics of the crab fishery. Together, he noted, they want to "make the best decision... that best suits the largest number of fishermen and the heart of the crab fishery."

Craig Wenrick, who fishes aboard the 22-foot dory F/V Sea Q, off the beach in Pacific City, called the potential pot limit reductions and other proposals "devastating to our fleet."

"There are limited days and times that a dory can safely launch and land through the surf," he noted.

The dory's limited capacity (six to ten pots) means he generally used most of the two-week grace period at the end of the season to remove gear. Ending that grace period effectively shortened his season by two weeks. "This will essentially eliminate my Labor Day market, which in years past has been a lifesaver for my business," he added.

"This rule change is unfair and has the potential of devastating economic impacts on the smallest of vessels with the least impact on the resource," concluded Wenrick, who asked for an exemption from the rule for vessels less than 26 feet long "until the impacts on the small boat fleet can be fairly assessed."

John Corbin noted that the fishery had already taken steps to reduce its ecosystem impact by creating a limited entry system in 1996, followed by pot limits in 2006 to reduce the amount of crab gear in the ocean. "We also try to disentangle whales whenever possible," he said. "We have whale entanglement teams, and they have successfully untangled many of them."

Now they must take the next step, and crabbers face uncertainty and a tight deadline just as they're gearing up for the new season.

Braby, Buell, and Corbett noted that Oregon has joined California and Washington in the process of applying for the federal incidental take permit. To get the "take," there must be some give.

"This is a serious conversation about how we shape this fishery moving forward," Braby said. "We have to bring something to the table. We need to discuss what it is you can live with, then determine the economic impact."

Crabbers have until mid-December to make their wishes known. Fishery managers will forge a proposal on recommended actions to present to the OFWC during their February 2020 meeting.

Anyone who wants to provide input on the options should contact Caren Braby (541-867-0300, ext. 226), Troy Buell (541-867-0300, ext. 225) or Kelly Corbett (541-867-0300, ext. 244).


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