(CN) – A pair of federal agencies and the Hawaii Longline Association do not have to face claims over their response to incidental catches of a dwindling species of dolphins known as false killer whales, the 9th Circuit ruled Wednesday.
There were nearly 1,000 false killer whales in Hawaiian waters about 20 years ago, but the National Marine Fisheries Service estimated that number has dropped to just 143 in late 2010. The mammals, actually dolphins, are often are hooked incidentally or caught up in fishing lines.
The name false killer whale comes from the fact that, like the more widely known Orca, the dolphins eat other marine mammals. When left alone, they may live 60 years and grow up to 15 feet in length.
The Center for Biological Diversity, Turtle Island Restoration Network and ocean advocates with Hui Malama I Kohala filed the original complaint against the National Marine Fisheries Service and U.S. Department of Commerce in March 2009.
The Hawaii Longline Association intervened as a defendant in the case, which alleged that the agencies had violated the Administrative Procedures Act by failing to adhere to federal deadlines and not prioritizing safeguards for false killer whales.
Though Congress passed resolutions in 1994 to curb the incidental killing or injuring of marine mammals from commercial fishing operations, the National Marine Fisheries Service failed to take immediate action, according to arguments by the plaintiffs.
The Hawaii Longline Fishery was the sole source of incidental mortality of and serious injury to false killer whales in Hawaiian waters, but the government did not take reduction plan until 2009, they claimed.
But the National Marine Fisheries Service told the court that it simply did not have the money protect the population earlier, despite lump-sum appropriations made to the National Oceanic and Atmospheric Administration.
Against this claim, the environmentalists argued that the government spent $51 million to protect other marine species.
By October 2009, U.S. District Judge David Alan Ezra agreed to dismiss the complaint, finding that the defendants did what it could to prioritize protection of the false killer whale.
“Moreover, the fact that NMFS has spent over $51 million on take reduction efforts for other marine mammals is not, in itself, evidence that NMFS has funds free to spend on the Hawaii false killer whale stock,” Ezra wrote.
At the October 2009 hearing for the case, Ezra said “this is not an easy case,” but that his hands were tied.
“It’s not a matter of whether I think they’re right or wrong,” Ezra said. “The Supreme Court says I flat don’t have the jurisdiction to do it.”
“I’m very well aware, probably better than any other judge sitting, of what is out there and what their [false killer whale] status is,” he said at another point in the hearing, going on to bemoan how economic concerns necessarily force the government to shift its focus, just as its own citizens must.
“Americans concerned about global warming was considerably heightened three years ago and has diminished dramatically this past few months … I mean precipitously diminished,” he said. “And it’s because when people are worried about, you know, where the heating bill is coming from or who’s going to pay … to fill the car up with gas because somebody’s lost their job, they’re much less concerned about what’s going on with the polar bear, you know.”
The wildlife groups appealed Ezra’s decision, but a three-judge panel of the 9th Circuit decided to rule on the case without a hearing for oral arguments. In an unpublished and unsigned opinion Wednesday, the Honolulu-based panel affirmed dismissal of the case, noting that the government mooted the case by drafted a “take reduction plan” and created a team to carry out that plan, which according to federal statute is meant to “reduce, within 6 months of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to levels less than the potential biological removal level established for that stock.”
The wildlife groups may still request a rehearing before the full 12-judge court.
Rare whale-dolphin hybrids known as wholphins are produced from the cross of false killer whale and dolphin. This mating between different species is believed to be the first of its kind to produce fertile offspring.
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