March 21, 2017 Via Electronic Mail to: Hon. Mazie K. Hirono U.S. Senator for Hawai‘i Betsy Lin, Chief of Staff 330 Hart Senate Office Bldg. Washington, DC 20510 senator@hirono.senate.gov betsy_lin@hirono.senate.gov Hon. Brian E. Schatz U.S. Senator for Hawai‘i Andrew Winer, Chief of Staff 722 Hart Senate Office Bldg. Washington, DC 20510 senator@schatz.senate.gov andrew_winer@schatz.senate.gov Hon. Colleen W. Hanabusa U.S. Representative for Hawai‘i Michael Formby, Chief of Staff 422 Cannon House Office Bldg. Washington, DC 20515 colleen.hanabusa@mail.house.gov michael.formby@mail.house.gov Hon. Tulsi Gabbard U.S. Representative for Hawai‘i Kainoa Penaroza, Chief of Staff 1609 Longworth House Office Bldg. Washington, DC 20515 tulsi.gabbard@mail.house.gov kainoa.penaroza@mail.house.gov Re: Need for Reform of Western Pacific Regional Fishery Management Council Dear United States Senators and Representatives: The signatories to this letter are writing to call your attention to ongoing problems with -1- the Western Pacific Regional Fishery Management Council and to request your assistance in bringing about much-needed reforms. I. OVERVIEW The leaders of the Western Pacific Council (including executive director Kitty Simonds, chair Ed Ebisui, Jr., and others) have a history of questionable behavior, and complaints have been made relating to potential financial conflicts of interest and improper use of taxpayer funds for lobbying activities.1 Despite these agency-focused complaints, no action has been taken to rectify the situation, and the problems have become more egregious, especially in the past year. Throughout 2016 and into 2017, Council leaders have been engaged in a crusade against the expansion of the Papahānaumokuākea Marine National Monument and its associated fishing restrictions. These activities are grossly inappropriate given that the Council’s primary role is to gather scientific data and assist the National Marine Fisheries Service (“NMFS”) in the development of fishery management plans. Council leaders have no authority to make policy recommendations relating to National Monuments or to exert pressure on executive and legislative officials with respect to their proposed courses of action. The actions of senior Council staff also exceed the scope of their job responsibilities, which are limited to administrative tasks.2 The Council leaders’ recent activism strongly suggests that they may be using federal funds to engage in prohibited lobbying activities. Doing so would be in violation of multiple federal statutes and regulations and subject to potential penalties. Even more importantly, Council leaders’ vehement opposition to the Papahānaumokuākea Marine National Monument expansion and their lopsided support for commercial fishing interests run counter to the Council’s fundamental duty to protect marine fishery resources and to serve the long-term public interest in maintaining healthy ecosystems. We are proposing a series of common sense reform measures designed to address the current issues with Western Pacific Council leadership, prevent similar issues from arising in the future, improve competence and transparency, and ensure that Council leaders are committed to fulfilling their proper roles. We are asking for your support in the hope that your influence as federal legislators will help persuade NMFS to institute the needed measures. 1 See, e.g., Oahu Game Fish Club and Waianae Boat Fishing Club, Report on the Suspect Actions of the Western Pacific Fishery Management Council (Nov. 2005) (prepared by Bessenyey & Van Tuyn LLC); U.S. Govt. Accountability Office, Fisheries Management: Alleged Misconduct of Members and Staff of the Western Pacific Fishery Management Council, GAO-09-508R (May 20, 2009). 2 See Western Pacific Council, Statement of Organization Practices and Procedures (“SOPP”), at 9 (Oct. 2, 2012), available at www.wpcouncil.org/about/SOPP.pdf (accessed Mar. 10, 2017). -2- II. BACKGROUND A. Papahānaumokuākea Marine National Monument The Papahānaumokuākea Marine National Monument—originally known as the Northwestern Hawaiian Islands Marine National Monument—was established by President George W. Bush in 2006.3 The expansion built on steps taken by six presidents, starting with Theodore Roosevelt in 1903, to conserve the fisheries, wildlife, and ecosystems of the Northwestern Hawaiian Islands.4 Moreover, the proposal for expansion that was initiated by Native Hawaiians led to an “outpouring of support in Hawai‘i” and around the nation.5 Just as local fisherman Uncle Buzzy Agard led the original effort to establish the Papahānaumokuākea Monument, “local fishermen [were] again leading the call to President Obama to expand the monument.”6 Moreover, as noted recently by The Honorable Gregorio Sablan, U.S Representative for the Commonwealth of the Northern Mariana Islands, “each marine monument designation has been preceded by a lengthy stakeholder engagement process that included the fishing industry and led to changes in the final designation based on fishermen’s concerns,” and “landings data show that very little of the industry’s catches were coming from the areas that are now monuments.”7 The Papahānaumokuākea Monument encompasses extensive coral reefs supporting 7,000 marine species, as well as important habitat for the threatened green sea turtle, endangered Hawaiian monk seal, 22 species of seabirds, and four bird species found nowhere else, including the endangered Laysan duck.8 The Monument is also of great importance to Native Hawaiians, with numerous sacred biocultural resources.9 The Monument includes modern historic resources as well, such as those associated with the 3 See Presidential Proclamation 8031 (June 15, 2006) (issued pursuant to the Antiquities Act, 16 U.S.C. §§ 431-433), available at http://www.presidency.ucsb.edu/ws/?pid=139 (accessed Mar. 10, 2017). The Native Hawaiian name of the Monument—Papahānaumokuākea Marine National Monument—was adopted in a 2007 amendment to Proclamation 8031. 4 See Papahānaumokuākea Monument, Timeline of Ecosystem Protections (May 22, 2013), available at http://www.papahanaumokuakea.gov/pdf/timeline.pdf (accessed Mar. 10, 2017). 5 Expand Papahānaumokuākea Press Release, Support for Native Hawaiian Proposal to Expand Papahānaumokuākea Monument Grows: Thousands Join Call to President Obama to Preserve Ocean and Cultural Heritage (May 5, 2016), available at http://expandpmnm.com/wp-content/uploads/FINALExpandPMNM-Press-Release-May-5.pdf (accessed Mar. 10, 2017). 6 Id. 7 Hon. Gregorio Sablan, U.S. Rep. Commonwealth Northern Mariana Islands, Statement/Questions, Subcommittee on Water, Power, and Oceans, Oversight Hearing “Examining the Creation and Management of Marine Monuments and Sanctuaries” (Mar. 15, 2017), video available at http://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=401648 (accessed Mar. 15, 2017). 8 See Papahānaumokuākea website, http://www.papahanaumokuakea.gov/new-about/ (accessed Mar. 9, 2017). 9 See id. -3- Battle of Midway and 19th-century commercial whaling.10 In recognition of these extraordinary resources, the Papahānaumokuākea Monument was designated as a mixed natural and cultural World Heritage Site by the United Nations in 2010.11 The Monument is administered jointly by four co-trustees, the U.S. Department of Commerce, the U.S. Department of the Interior, the State of Hawai‘i, and the Office of Hawaiian Affairs, whose responsibilities are delineated in a memorandum of agreement (“MOA”).12 The Monument is managed under joint implementing regulations promulgated by the federal agencies in 2006,13 as well as a management plan adopted in 2008.14 B. Western Pacific Regional Fishery Management Council The Western Pacific Council is one of eight regional councils established by the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”).15 The primary role of the councils is to gather scientific data and assist NMFS in the development and implementation of ecosystem-based fishery management plans.16 Such plans must be consistent with national standards for fishery conservation and management, which require, among other things, prevention of overfishing and decision-making based on the best scientific information available.17 Each council is required to adopt a statement of organization, practices, and procedures (“SOPP”) to govern its day-to-day operations.18 Voting council members are considered “trustees of the nation’s fishery resources,”19 and they must take an oath promising to “conserve and manage the living marine resources of the United States of America,” “serve as a knowledgeable and experienced trustee of the Nation's marine fisheries resources,” “balance competing private or regional interests,” “protect[] … the public interest in those resources,” and “uphold the provisions, 10 See id. See id. 12 See Memo. Agmt. Among State of Hawai‘i Dept. Land and Nat. Res., Office of Hawaii Affairs, U.S. Dept. Interior Fish & Wildlife Service, U.S. Dept. Commerce Nat’l Oceanic & Atmos. Admin. Promoting Coordinated Management of the Northwestern Hawaiian Islands Marine National Monument and Expansion (Jan. 10, 2017) [hereafter “MOA”], available at https://governor.hawaii.gov/wpcontent/uploads/2017/01/MEMORANDUM-OF-AGREEMENT-SIGNED-FINAL.pdf (accessed Mr. 16, 2017). http://www.papahanaumokuakea.gov/PDFs/MOA_Dec06_Color.pdf (accessed Mar. 10, 2017). 13 See 50 C.F.R. Part 404. 14 See Papahānaumokuākea Marine National Monument Management Plan, available at http://www.papahanaumokuakea.gov/management/mp.html (Dec. 2008) (accessed Mar. 10, 2017). 15 See 16 U.S.C. § 1851 et seq. 16 See 16 U.S.C. § 1852(g)-(h); Western Pacific Council SOPP, at 4-5. 17 See 16 U.S.C. § 1851(a)(1)-(2). 18 50 C.F.R. § 600.115. 19 Western Pacific Council SOPP, at 6. 11 -4- standards, and requirements” of the MSA and other applicable law, and “conduct myself at all times according to the rules of conduct prescribed by the Secretary of Commerce.”20 Under the Western Pacific Council SOPP, the executive director and other staff are tasked with administrative duties to help the Council implement the responsibilities described above, such as “participation in Fisheries Ecosystem Plan development; preparation of Council reports, statements, and correspondence; financial management, budget preparation and procurement; record keeping; meeting logistics; and other administrative activities.”21 Commerce regulations provide that fishery management council members and employees must adhere to narrowly defined responsibilities and strict ethical standards. They are subject to most federal criminal statutes “covering bribery, conflict-of-interest, disclosure of confidential information, and lobbying with appropriated funds.”22 In addition, council members and staff are held to “high standards of ethical conduct,” and they “must comply with the Federal Cost Principles Applicable to Regional Fishery Management Council Grants and Cooperative Agreements, especially with regard to lobbying, and other restrictions with regard to lobbying as specified in § 600.227 of this part.”23 Commerce regulations also provide that “Council members, employees and contractors must comply with the requirements of 31 U.S.C. 1352 and Department of Commerce implementing regulations published at 15 CFR part 28, ‘New Restrictions on Lobbying,’” which “generally prohibit the use of Federal funds for lobbying the Executive or Legislative Branches of the Federal Government in connection with the award.”24 The Office of Management and Budget (“OMB”) “Federal Cost Principles” referenced above prohibit fishery management councils and other grant recipients from using federal funds for lobbying in connection with legislation and election campaigns.25 In addition, they prohibit the uses of federal funds to “improperly influence either directly or indirectly, an employee or officer of the Executive Branch of the Federal Government,” and “improper influence” is defined to mean “any influence that induces or tends to induce a Federal employee or officer to give consideration or to act regarding a federallysponsored agreement or regulatory matter on any basis other than the merits of the matter.”26 The statute referenced above as “New Restrictions on Lobbying” prohibits federal funds from being used to “pay any person for influencing or attempting to influence an officer or employee of any agency” with respect to the awarding of any federal contract, making 20 50 C.F.R. § 600.220. See Western Pacific Council SOPP, at 6-7. Western Pacific Council, SOPP, at 9. 22 50 C.F.R. § 600.225(a). See Western Pacific Council SOPP, at 9-10. 23 50 C.F.R. § 600.225(b), (b)(2). See Western Pacific Council SOPP, at 10. 24 50 C.F.R. § 600.227(a). 25 See 2 C.F.R. Pt. 230, app. B § 25(a), codifying OMB Circular A-122. 26 Id. § 25(d). 21 -5- of any federal grant or loan, as well as the “entering into of any cooperative agreement” and the “extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.”27 The Department of Commerce has adopted regulations implementing this statute.28 III. WESTERN PACIFIC COUNCIL LEADERS’ IMPROPER ACTIVITIES Western Pacific Council leaders engaged in aggressive advocacy and lobbying against the expansion of the Papahānaumokuākea Monument throughout 2016, and they are continuing to advocate and lobby for the elimination of fishing restrictions applicable to the Monument in 2017. These activities contravene the trust responsibilities and oath of office taken by Council members, and they reach far beyond the scope of Council staff’s administrative responsibilities. In addition, they may very well violate one or more of the federal statutory and regulatory restrictions described above or other similar restrictions. The most recent instance of the Western Pacific Council leaders’ inappropriate and potentially unlawful anti-Monument campaign activities took place just two weeks ago at a Council Coordination Committee (“CCC”) meeting in Virginia on February 28, 2017. Western Pacific Council leaders gave a slide presentation that included a highly partisan campaign slogan (“Make America Great Again”) and an explicit call to action urging CCC members to band together in a concerted effort to eliminate Monument-related fishing restrictions (“Request the Trump administration remove the monument fishing provisions”). 29 In fact, the Council leaders specifically stated that it was their intention to send a letter to the Trump administration requesting removal of the fishing restrictions, and it is our understanding that they have done so. Moreover, by emphasizing that the removal of Monument-related fishing restrictions would “return management of these US waters” to the regional councils, the Council leaders’ presentation revealed that one of the key motivations for their anti-Monument zeal is their desire to maintain control over their perceived turf.30 The Council leaders’ recent slide presentation is just the latest episode in their ongoing fight against the Papahānaumokuākea Monument. Over a nine-month period, Council leaders sent a total of five letters on Council letterhead to President Obama lobbying against the Papahānaumokuākea Monument expansion.31 Contrary to applicable laws 27 31 U.S.C. 1352(a)(1)-(2). See 15 C.F.R. Part 28. 29 See Presentation of E. Ebisui Jr. and K. Simonds, Marine National Monuments and Fishing Restrictions, Council Coord. Comm. Mtg., at 8, 9 (Feb. 28 - Mar. 1, 2017) (emphasis in original), available at http://www.nmfs.noaa.gov/sfa/management/councils/ccc/2017/feb/tab8-marine-monumentsfishing-restrictions-acc.pdf (accessed Mar. 10, 2017). The slide presentation is enclosed with this letter for your convenience. 28 30 31 See id. at 10. Western Pacific Council letters and resolutions are generally available on the Council website at http://www.wpcouncil.org/nwhi-fisheries-2/letters-and-resolutions/ (accessed Mar. 10, 2017). -6- and regulations, these letters went far beyond technical input and included specific policy recommendations and requests. For instance, in their April 8, 2016 letter, Council leaders urged President Obama to “not advance the request to expand the PMNM.”32 Additionally, in the summer of 2016, the Council’s executive director sent an email using her Council email address to a group of people she was clearly directing in a scheme to block the expansion of the Monument.33 The anti-Monument protest/press conference at the capitol that she helped organize through this email took place on July 26, 2016.34 As reported in the media, a Western Pacific Council spokesperson attempted to defend the Council leaders’ actions, claiming they were consistent with applicable mandates because they were not addressing “legislation or proposed legislation.”35 This represents a gross mischaracterization of the federal restrictions on Council members and staff because federal statutes, OMB rules, and Commerce regulations are all explicitly applicable to lobbying activities targeting the executive branch as well as the legislative branch.36 The spokesperson’s statement also fails to address the inconsistency of the chair’s actions with his trust responsibilities and oath of office, or the fact that the executive director’s actions fall outside the bounds of her administrative duties. On behalf of his constituents, Representative Sablan of the Northern Mariana Islands has expressed concerns similar to those identified in this letter, stating in a recent subcommittee oversight hearing that [W]e should not allow regional fishery management councils, including the Western Pacific Council, to have veto power over fishing rules in monuments and sanctuaries designed to conserve all marine species and habitats, not just fish. WESPAC in particular has fought against every major marine conservation initiative in recent memory … . The executive director of WESPAC—a federal employee—has gone so far as to … recruit other council members and staff from around the country to join her in lobbying the Trump Administration to abolish marine monuments. 32 Letter to Pres. Obama (April 8, 2016), available at http://www.wpcouncil.org/wpcontent/uploads/2016/06/2.13-wprmc-letter-to-president-obama.pdf (accessed Mar. 10, 2017). 33 Email from K. Simonds, Exec. Dir. Western Pacific Council, to Dave Chun, Donn Ariyoshi, Millanie Akaka, Peter Apo, Charlies Kaalai, Colin Kippen, Annelle Amaral, Ron Jarrett, Michelle Kauhane, Leon Siu (July 16, 2016), available at http://www.civilbeat.org/2016/07/complaint-top-federal-fisheriesofficial-shouldnt-be-meddling-in-marine-monument-debate/ (accessed Mar. 10, 2017). A copy of the email is enclosed with this letter for your review. 34 Honolulu Civil Beat, Complaint: Top Federal Officials Shouldn’t Be Meddling in Marine Monument Debate (July 29, 2016), available at http://www.civilbeat.org/2016/07/complaint-top-federal-fisheriesofficial-shouldnt-be-meddling-in-marine-monument-debate/ (accessed Mar. 10, 2017). 35 Honolulu Civil Beat, Complaint. 36 See 31 U.S.C. 1352(a)(1)-(2); 50 C.F.R. § 600.227(a); 2 C.F.R. Pt. 230, app. B § 25(d); supra notes 2427 and accompanying text. -7- These activities are inappropriate, at the very least, and show that WESPAC supports the fishing industry at the expense of marine conservation that benefits all Americans. Instead of blaming monuments for problems that do not exist, WESPAC should focus on addressing the serious allegations of labor abuses and human trafficking aboard Hawaii-based longliners, and rebuilding the numerous reef fish stocks that NOAA recently showed are overfished.37 The Council does indeed have important work to do, and the ongoing anti-Monument politicking of its leadership only serves to undermine and detract from such work. The reforms we are requesting below will help ensure that the Council’s taxpayer-funded work regains its proper focus on the gathering of scientific data and assisting in the development of fishery management plans. IV. CONCLUSION The original designation of the Papahānaumokuākea Monument and its subsequent expansion were both well-supported by leaders of the Native Hawaiian community, elected officials, local fishermen, the conservation community and others. The Western Pacific Council leaders’ ongoing battle against the Monument reflects a deeply troubling lack of concern for the protection of sensitive natural resources and the long-term public interest, as well as a keen desire to maintain exclusive control over resource management in the region. The use of federal money to advance this agenda contravenes the Council’s duties as a trustee of the nation’s marine fishery resources, and it is an affront to taxpayers. We therefore ask that you, as our elected representatives, take appropriate steps to address the problems described above and prevent their recurrence. In our view, those steps should include the following: • If employment or lobbying violations have occurred, referral of the matter to the Department of Commerce for corrective action or to the Department of Justice for penalties or other enforcement; • Removal of Council members or staff who have engaged in employment violations or lobbying or resist or fail to comply with reform measures; • Improved transparency through better documentation, record-keeping, financial and lobbying audits, routine posting of materials online, cooperation with FOIA requests, release of budgetary information, and other measures; • Annual training of all Council members and staff concerning applicable 37 Hon. Gregorio Sablan, Statements/Questions, Oversight Hearing, supra note 7. -8- lobbying restrictions; and • Other reform measures that the congressional delegation may deem appropriate. Thank you very much for your consideration of the matters described in this letter. We look forward to discussing them with you further at your earliest convenience. Sincerely yours, Paul Achitoff Managing Attorney, Mid-Pacific Earthjustice Marti Townsend Director Sierra Club of Hawai‘i Marjorie Ziegler Executive Director Conservation Council for Hawai‘i Hannah Bernard Executive Director Hawai‘i Wildlife Fund Maka‘ala Ka‘aumoana Vice Chair Hui Ho‘omalu I Ka ‘Āina, Edwin “Ekolu” Lindsey President Maui Cultural Lands Rick Gaffney President Hawai‘i Fishing and Boating Association Cameron Sato Co-Chapter Leader Young Progressives Demanding Action – Hawai‘i Tina Owens Executive Director LOST FISH Coalition Enclosures: CCC Presentation by Kitty Simonds and Ed Ebisui, Jr. (Feb. 28, 2017) Email from Executive Director (July 16, 2016) Cc: Hon. Aumua Amata Radewagen, U.S. Rep. American Samoa, aumuaamata@mail.house.gov Leafaina Yahn, Rep. Radewagen Chief of Staff, leafaina.yahn@mail.house.gov Hon. Madeleine Bordallo, U.S. Rep. Guam, madeleine.bordallo@mail.house.gov Matthew Herrmann, Rep. Bordallo Chief of Staff, matthew.hermann@mail.house.gov Hon. Gregorio Sablan, U.S. Rep. Commonwealth Northern Mariana Islands, -9- gregorio.sablan@mail.house.gov Robert Schwalbach, Rep. Sablan Chief of Staff, robert.schwalbach@mail.house.gov Hon. David Ige, Governor of Hawai‘i, gov@gov.state.hi.us Michael McCartney, Gov. Ige Chief of Staff, mike.mccartney@hawaii.gov Suzanne Case, Chair, Department of Land and Natural Resources, suzanne.case@hawaii.gov Michael Tossato, NMFS Regional Administrator—Pacific Islands Region, michael.tosatto@noaa.gov - 10 -