This is so frustrating on so many levels, the first one being that what they are proposing is unconstitutional (in spirit). Have they taken the time to read our Constitution? Do they respect the laws of our people? Of course not!
Article XIV, Section 2 of of the CNMI Constitution reads:
Section 2. Uninhabited Islands. The island of Managaha shall be maintained as an uninhabited place and used only for cultural and recreational purposes. The islands of Maug, Uracas, Asuncion, Guguan and other islands specified by law shall be maintained as uninhabited places and used only for the preservation and protection of natural resources, including but not limited to bird, wildlife and plant species.What part of "used only for the preservation and protection of natural resources" do they not understand?
It is shameful, if you ask me.
So the Friends of the Marianas Trench Monument came up with a list of comments on their proposed fishing regulations.
I wanted to make sure that WESPAC had a copy of this, so I emailed a copy to their executive director, Kitty Simonds, along with a short note:Commentary of
Friends of the Marianas Trench Monument
Ignacio V. Cabrera – Chair
Agnes M. McPhetres – Vice Chair
Laurie Peterka – Secretary
Angelo Villagomez – Director
Bryan Jones – Director
Jane Mack – Director
Western Pacific Regional Fishery Management Council
147th Council Meeting
Draft Omnibus Amendment to the American Samoa Archipelago,
Mariana Archipelago and Pacific Remote Island Areas
Fishery Ecosystem Plans
Fishery Management Measures for the
Rose Atoll, Marianas Trench and Pacific Remote Island Area
Marine National Monuments
March 21, 2010
Proclamation 8335 signed on January 6, 2009 by President George W. Bush reads:
“Within the Islands Unit of the Monument, the Secretary of Commerce shall prohibit commercial fishing. Subject to such terms and conditions as the Secretary of the Commerce deems necessary for the care and management of the objects of the Islands Unit, the Secretary, consistent with Executive Order 12962 of June 7, 1995, as amended, shall ensure that sustenance, recreational, and traditional indigenous fishing shall be managed as a sustainable activity consistent with other applicable law and after due consideration with respect to traditional indigenous fishing of any determination by the Government of the Commonwealth of the Northern Mariana Islands.”
“... The Monument management plans ...shall... provide for ... traditional access by indigenous persons, as identified by the Secretaries in
consultation with the Government of the Northern Mariana Islands, for culturally significant subsistence, cultural and religious uses within the monument.”
NOTE AT PAGE 2 of the FEP amendment proposal, and also page 7-Secretary of Commerce has lead authority over fishing; but Secretary of Interior has lead authority over the monument in general. The proclamation language about management plans, including ACCESS, refers to the general management and not fishing, and is thus within the primary authority of Secretary of Interior.
The only provision of the proclamation upon which WESPAC should be offering its guidance is that related to fishing. So the FEP amendment (at pages 2, 7) that refers to the proclamation language about “traditional access by indigenous persons...for culturally significant subsistence, cultural and religious uses” is not a legal basis for authority or action in any way by WESPAC, as it is not confined or targeted at fishing.
Thus definition at 2.2.5 should be eliminated. This type of ACCESS to the Monument is the province of the Secretary of Interior.
This provision does, however, offer some guidance on HOW indigenous persons must travel to the monument for cultural purposes--by traditional means.
The language of the proclamation that applies to fishing in the Islands Unit of the Marianas Trench National Marine Monument 1) prohibits commercial fishing; and 2) mandates that any allowed “sustenance, recreational, and traditional indigenous fishing shall be” a sustainable activity.
The “Magnusson-Stevens Act, 16 USC 1802, (MSA), defines commercial fishing.
The term “commercial fishing” means “fishing, in which the fish harvested, either in whole or in part, are intended to enter commerce or enter commerce through sale, barter or trade.”
At PAGE 3 of the FEP amendment proposal-The justification that would allow sale, barter or trade of fish caught under the non-commercial categories of fishing. This is clearly and directly inconsistent with federal law that defines commercial fishing. Recovering expenses is not a legal exception to commercial fishing. The proposal to allow sale, barter or trade of fish to recover expenses makes that fishing commercial, as the intent is for the fish to enter into the stream of commerce; paying for expenses with
fish is a commercial activity. Any such fishing must be prohibited by virtue of the absolute ban on commercial fishing in the Islands Unit of the monument.
Nor is this justification at page 3 of the FEP amendment proposal relating to permissible sale, trade and barter of fish for expenses consistent or related in any way to sustainability of fish populations, as expenses could be so broad as to include travel of fishermen from all parts of the world, hiring charter boats, paying wages of captain and crew, paying cost of gear, fuel, and consumables on the trip, all without a cap or limit, so that a fish catch worth thousands of dollars would be permissible.
WESPAC made public announcements requesting input from fishermen. http://www.mvariety.com/fishery-council-wants-to-hear-more-from-fishermen.php
They did not similarly request input from conservationists or those supporting strong protections for the marine resources.
In reality, Friends of the Monument had less than two full days to review this proposal, which exceeds 100 pages.
Although the proposed report may be true at section 1.2 (page 8) and 1.6 (page 9) when it reports on a “public review process,” it is not complete, and is therefore inaccurate. The continued emphasis of WESPAC on fishing interests, rather than conservation interests, or even the broad interests of the public at large, is inconsistent with the needs and mandate of the Monument proclamation and the purpose of the Islands Unit.
Section 1.5. The preferred definition-2.2.6-of allowable fishing is terrible. It does not draw the distinctions between the various types of fishing that are needed for a better understanding and future assessment of activity and possible impact. It allows commercial fishing, by allowing sale, barter and trade of fish, in violation of the Proclamation. It provides no basis for assessing, predicting or satisfying the mandate for sustainability.
The provision that requires federal permits and catch reports for all fishing in the Monument is good. However, it is not enough. There should also be provision for neutral monitors who may or shall ride on permitted vessels in the Monument Islands Unit.
Section 1.7 is the heart of the report and is objectionable. It tries to define fishing based on the viewpoint of fishermen, who are neither linguists nor legal scholars. Their word choice for how to define themselves should not be a basis for legal categories of fishing mandated by the Proclamation and necessitated by law.
That the Fisheries Management Council has allowed others to sell fish and regard this as not being commercial is not supported by any legal definition or law. It is not a regulation or view of the law that should be adopted here (or anywhere).
Commerce is well defined. Fish that are sold are automatically in commerce. Whether the proceeds are used to offset business expenses and overhead or result in profit is irrelevant to the legal meaning of commerce.
It is contrary to the purposes of a well-defined management plan to allow 1) definitions that do not define discrete categories; 2) definitions that derail the purpose of the proclamation; 3) definitions that blur the distinctions between the categories.
Allowing this broad, undefined type of fishing will invite commercial fishermen to fish in the Monument without restriction, and will create a loophole that is so big any intelligent fishing venture will be able to fit through it.
WESPAC should define each type of fishing as best as it can. It should insist that there is no commercial fishing in the Monument, as commercial fishing is defined by the MSA. It should limit and restrict other fishing by category, based on scientific information on the harm/impact of each kind of fishing and sustainability that can be achieved with limited permission. Fishermen can select the category or categories that best fit their actual practice when seeking a permit.
Sections 1.8 and 1.9 address subsistence fishing and traditional indigenous fishing and by lumping the discussion of these two types of fishing together completely blurs the real value of each and makes reasonable accommodation impossible.
Traditional indigenous fishing should for all purposes be practiced only by indigenous of the CNMI (or possibly CNMI and Guam). It should not allow for traditional indigenous fishing by persons of any other ethnicity, regardless of citizenship or nationality. It should not allow for traditional fishing by Taiwanese or Chinese or Japanese or Korean or Filipinos, all neighbors who may send fishing vessels to the area.
Traditional indigenous fishing should promote TRADITION—and therefore require access by traditional means, fishing by traditional means, and storage and return of fish by traditional means. While this may not be the practice now, it is the TRADITION, and by limiting traditional indigenous fishing to the real tradition will grant greater status and longevity to these historically significant methods, By limiting traditional indigenous fishing to real traditional practices, the regulations would help support and preserve the Chamorro and Carolinian cultures.
As these provisions now stand, there is no real tradition or significant cultural value that will be promoted. In fact, any indigenous who wanted to practice traditional fishing would find himself competing for fish stocks against vastly superior technologies.
There is also no SUSTAINABLE basis for enlarging the definition of traditional fishing. The reason that traditional fishing may be allowed is because of its small impact; but allowing all fishing as somehow traditional because the fish will eventually be eaten by people in the community (which numbers in the tens of thousands-vastly different and larger than past traditional communities), is neither legally nor culturally sound; and it is not scientifically sound as a sustainable fishing practice.
The BEST proposed definition is 2.2.4. MT 2
The Alaska model for subsistence fishing is not sustainable, nor is it one that should be adopted for the Islands Unit of the monument. Also, as written, the regulations do not seem to even provide for the limited protections of the Alaska system.
Subsistence fishing in Alaska is only permitted to residents who have been resident for at least 12 months.
The real problem, however, is that subsistence fishing can hurt eco-systems. (Eg. Fiji- http://www.scidev.net/en/news/subsistence-fishing-threatens-fijis-coral-reefs.html ). Subsistence fishing and hunting in Alaska results in takes that exceed the average per person consumption of the fish and meat that occurs in the regular population. http://www.subsistence.adfg.state.ak.us/geninfo/about/subfaq.cfm This means that in reality, subsistence fishing under the Alaska system, is more than sustenance or subsistence.
It is unrealistic to think that anyone would actually travel to the remote northern Islands Unit of the Monument to engage in subsistence fishing as it is defined for Alaska. A much more realistic definition would be that used for the Hawaiian marine Monument.
If we used the definition from Hawaii’s management plan, we would have subsistence fishing defined as: “fishing for bottomfish or pelagic species in Monument waters in which all catch is for direct personal consumption within the Monument and that is incidental to another activity permitted under Presidential Proclamation...”
This would also allow fishing by vessels passing through the Monument on direct paths to other places, and would require monitoring and caution. But is would allow those who are in the Monument to sustain themselves on fish while there. It would not allow them to sustain others elsewhere at any time.
This would be different than fishing in the rest of the CNMI and including the other units of the Monument. In those areas closer to populated centers, subsistence fishing could and does mean fishing for the family.
Thus, of the options proposed, choose OPTION 2.2.2.-MS 5 (MS 4 would be the only other possibly acceptable alternative.)
Recreational fishing can cause substantial harm to sustainability of marine eco-systems. The assumption that there will be little harm from such recreational fishing in the Islands Unit is not based on any science.
Recreational fishing is popular because it is enjoyable. Humans have a love of the sport. Fishermen who engage in recreational fishing can do many things with their experience and catch—they can eat the fish. They can stuff their fish for display and bragging rights. They can take photographs of the fish and sell the photographs. They can write articles about the fishing experience for leisure and travel and science, and sell their writing. They can use the fish for artistic purposes as in “fish prints” and sell the art. What they cannot do without sliding over into the definition of “commercial fishing” is sell, barter or trade the fish.
NONE of the proposed definitions are acceptable (2.2.3).
Lumping all of the monuments in one preferred definition is also untenable, as each has its own specific proclamation with specific requirements. This approach defeats the very basis for the different proclamations and is contrary to the essential purposes and unique approach that is needed and mandated in the management of each monument.
The amendments offer as a choice protection from 0-50 fathoms for no-take zones or 0-50 nautical miles. The difference is staggering. The first-0-50 fathoms provides virtually no protection for the Islands Unit of the Monument. The latter provides full protection for the entire Islands Unit of the monument.
No-take zones would be useful for the full area of the proclamation protection out 50 nautical miles. This could provide protection and maintenance of the status quo and give time to do more research and get better and more current assessments before deciding on opening up the area to other potentially allowable uses, like recreational, traditional indigenous, or sustenance fishing.
Alternatively, at least provide some complete no-take zone—choose 184.108.40.206.
One of the major problems with the plan to allow fishermen to recover costs associated with fishing in the Islands Unit without being considered commercial is the lack of control on how much fishing this would allow. While opposing all sale, trade, and barter of fish taken from the Islands Unit waters, if that is to be allowed in any regard for recoupment of “expenses” there must be a cap. Alternative-2.6 is worth pursuing if any sale, trade, or barter of fish from the Islands Unit waters is going to allowed.
Re page 41-42; repeated at page 51. While fishing is a wonderful occupation, vocation, recreation, there is no evidence that it is a solution to social and political problems in the CNMI. Orbach’s opinion is not scientifically supported either sociologically or economically. The factual background that gave rise to the premise is also no longer true. The CNMI has in recent years experienced a high rate of out-migration of local people and is now experiencing a high rate of crime and juvenile delinquency, both violent and property related. However, fishing continues to be available as a means of occupation, vocation, recreation for people in the CNMI, virtually without change. Therefore, since fishing has not changed, but out-migration and crime rates have, there is no basis to support Orbach’s opinion.
WESPAC should be relying on science, not rhetoric, in deciding what policies to implement.
The report replaces the standards set by the Proclamation for determining what fishing shall be allowed in the Islands Unit of the Monument with other standards that have no legal basis for consideration. It does so because it says there is little evidence for determining the legal standards At 4.0, WESPAC prefers to consider the impact on fishing communities, rather than on the eco-systems of the Islands Unit. In other words, WESPAC is substituting the impact on fish with the impact on fishermen. This is inconsistent with the purpose of the Monument, with the legal standards established by the proclamation, and with a scientific-based analysis. It’s also outrageous.
A better scientific approach would be to create a complete no-take zone for the entire Islands Unit of the monument and do research that establishes current data from which better decisions can be made. (There is insufficient current scientific data to support 4.2.1).
Also, as noted in comment 13, the reliance on Orbach’s “suggestions” about the social value of fishing is scientific nonsense.
The impact on administration is a relevant consideration as it helps figure out what can reasonably be done. However, there are phrases slipped into the impact portion that are not related to other textual references and suggest that standards even broader than these amendments are in play. For example, at page 76, “expense sales up to the poverty threshold” is used, but nowhere is a poverty threshold defined.
The impact also assumed that the CNMI government has capacity to engage in permitting and reporting enforcement; yet the CNMI government has been weak in regards to these activities in general. The responsibility for management and enforcement of the Monument can be shared, but the US should not be allowed to pass the responsibility to the CNMI, which has worse economic problems and no budget for such enforcement. If federal funds are to be used for enforcement, then federal agency involvement can be had, as well.
The Commonwealth of the Northern Mariana Islands Constitution expressly states at Article 12, Section 2: Uninhabited Islands. The island of Managaha shall be maintained as an uninhabited place and used only for cultural and recreational purposes. The islands of Maug, Uracas, Asuncion, Guguan and other islands specified by law shall be maintained as uninhabited places and used only for the preservation and protection of natural resources, including but not limited to bird, wildlife and plant species. [emphasis added]
WESPAC appears to have neglected the CNMI Constitution’s mandate entirely in its deliberation processes. We recommend that the CNMI Constitution is very clear about the management of the resources associated with the Marianas Trench MNM - Islands Unit. This is a perfect example of a “one-size-fits-all” approach not working on a localized level.
Hi Kitty,Within an hour I got a response from their outreach & education coordinator, Sylvia Spalding:
Can you make sure this gets entered into the record? I'm not really sure how you guys function.
Please see attached document. It contains the 11 comments by the Friends of the Marianas Trench Monument on the proposed fishing regulations for the Marianas Trench Marine National Monument. Feel free to share this with anyone who would be interested.
Angelo:Isn't it kind of creepy that they keep tabs on people like that?
Regarding your message below, please note that Ken Kramer sent earlier today what looks to be the same document you have sent but with slightly different formatting. We have encouraged Ken to participate in the Council meeting and present the comments orally to the Council today or tomorrow. The Council meeting runs until 5 p.m. on both days.
The Council process has not changed significantly from two years ago when you attended the Council meeting on Guam. Our Council process booklet can be downloaded from our website at www.wpcouncil.org.
So I checked out the website and it's impossible to navigate. Where the hell is the Council process booklet?
I can probably safely assume that our testimony was accepted, right? I mean, I sent it to their executive director and I know they got it because they responded. They wouldn't just ignore it, would they?