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Right whale closure draws questions

Some North Carolina fishermen are keeping a wary eye on the outcome of a meeting set in St. Augustine, Florida next week to discuss the possible permanent closure of the right whale critical habitat area off the coasts of Georgia and Florida.

Focus will be on the death of a right whale calf in late January off Jacksonville, Fla. That death prompted a temporary closure of the area, and now National Marine Fisheries Service (NMFS) officials seem poised to make the Southeast US Restricted Area closure permanent. If so, commercial fishing with gill nets would be prohibited from Nov. 15 to March 31 each year.

If this occurs, it will be another blow for Tar Heel fishermen already shut out of fishing for dogfish off this state's coast and facing a dwindling list of options for fishing even in other areas. The dogfish closure is being protested by fishermen, state officials and scientists alike.

In March, the Outer Banks Sentinel reported that Roger A. Rulifson of the Institute for Coastal and Marine Resources at East Carolina University announced that his research showed that NMFS' estimates of spiny dogfish mortality rates are too high.

NMFS estimates that 50 percent of dogfish caught in trawls, 75 percent caught in gillnets, and 100 percent caught by hook and line do not survive capture and release. The federal agency used those figures in the stock assessment models that form the basis for management plans and regulations. Rulifson's research showed an initial mortality rate of zero percent for spiny dogfish captured in trawls and 17.5 percent for those caught in gillnets. The study did not look at hook and line mortality.

And the university researcher is not alone. The mortality rates established through his research were lower than those found in a study completed in 2003 in Massachusetts that also contradicted the rates used by NMFS.

Seemingly following a pattern, the January death of the right whale calf and the subsequent actions by NMFS also have raised questions about the adequacy of the science and information used as a basis for decision-making.

Right whales are the rarest of all large whale species and among the rarest of all marine mammal species with only an estimated 300 living in the North Atlantic. They are found in three general regions: the North Atlantic, the North Pacific, and the Southern Hemisphere. Right whale populations, historically, were severely depleted by commercial whaling. More recently, direct and indirect impacts from human activities have contributed to a lack of recovery. Although entanglement with commercial fishing gear is one problem, ship strikes account for about half of all known deaths due to unnatural causes.

There is Federal legislation which controls commercial fishing in areas known to be inhabited by the endangered species, however, although attempts to regulate ship traffic through critical habitat have been proposed, to date there are no regulations in force or penalties for ship interaction with right whales.

On Sunday, Jan. 22, the calf was reported floating in the water about 16 miles off of Jacksonville, about a mile outside the restricted area. The carcass was towed to shore where scientists gathered the next day to begin their efforts to determine the cause of death.

Federal law that mandates closures when right whale deaths occur due to entanglement with fishing gear, stipulates that the event must take place inside the restricted area. In this instance, according to the Federal Register notice published Feb. 16, 2006, NMFS asserts that prior to discovery of the carcass, winds were from the west and northwest and thus "the calf most likely died as inshore and north of where the carcass was found."

Wind data obtained by the Outer Banks Sentinel shows the opposite.

The South East Climate Control Center located in South Carolina provided the Sentinel with wind direction data originating from Jacksonville International Airport. That data shows the winds were out of the west only one of the six days preceding the death, the three days immediately before the discovery, winds were from the east or north east; and the remaining days in that period of time, winds were from the south. Data originating from Mayport Naval Air Station confirms that from Jacksonville airport.

Asked about the discrepancy, David Bernhart, of NMFS Southeast Regional Office in St. Petersburg, Fla., responded that he hasn't personally looked at the wind data and doesn't have an explanation as to why it is different.

The question as to whether the death was caused by interaction with fishing gear also appears not to have a conclusive answer. No netting or other gear was found on the calf when it was towed to shore. And, although the Sentinel was told last month that the final necropsy report would be available "in 11 days" officials said on Thursday that the report will not be distributed until Tuesday when the meeting is set, thus taking away the opportunity for any substantial review of the document by team members or the public before its findings are discussed at the meeting.

Bernhart said the lack of a report isn't a problem. "At the team meeting, we are going to review information on entanglement but, as far as determination of what caused that calf to die, that determination has been made by NMFS. The team may want to argue -- to look at all of it -- or find a constructive way of looking at it so we can determine how future recommendations are shaped. The necropsy is not the definitive word [on how the calf died] -- it is just what they saw -- the physical thing before them -- that is what their findings reflect. NMFS's determination is based on totality and history of area. Now if there is additional information in this report that we need to consider going forward then we will do that."

The Federal Register notice states that aerial survey photographs show that the calf was spotted Jan. 8 and 9, with its mother, and appeared to have wounds consistent with gill net markings. However, on April 7, Bernhart told the Sentinel that the photos actually showed entangled gear on the animal. This wasn't discovered until after the calf died because, until then, no one looked at the photos, he said.

It is unclear if they were the same photos mentioned in the Federal Register notice or why a photographer wouldn't have noticed such encumbrance on the calf.

Some wounds on the calf have been attributed to shark bites, both before and after death. A long gash along its back has remained unexplained. And some wounds around its tail are said to be from a gillnet, however, although it has been reported that the wounds were noticed from the air several days before the calf's death, the scars apparently are not distinct enough to estimate mesh size.

NMFS, mandated by law, must do an economic impact analysis when closing waters to fishing. In this case, the Federal Register notice states that only landings made in Florida were used. However, a number of North Carolina fishermen were fishing in the area at the time and at least three of those vessels brought their respective catches back to local docks.

Also raising eyebrows is the role that scientist Sharon Young has in this particular process. Young is an employee of the Humane Society which advocates closing all gill net fisheries in the US; is a member of the Atlantic Scientific Review Group, appointed by NMFS to peer review stock assessments; and is a member of the Atlantic Large Whale Take Reduction Team which will meet next week to form recommendations related to the possible permanent closures.

As an employee of the Humane Society, Young wrote a letter demanding the closure of the area, even though the final necropsy report is still not available and a letter was penned by the Atlantic Scientific Review Group making a similar demand. And now she will sit at the table to help decide the final determination.

Also drawing ire is the participation of researcher Douglas Nowacek on the ASRG. Nowacek has announced the upcoming publication of a paper in one of the science journals that also calls for a permanent closure.

Bernhart said that the ASRG is an advisory group with a charge to ensure the scientific integrity of stock assessments. As to whether the appointment of these two scientists to the ASRG is ethical, Bernhart said that at the time the appointments were made, "I guess they didn't see it as a problem."

There is no commercial fishing representation on the ASRG.

Sandy Semans can be reached at 480-2234 or by email at