BOSTON (CN) - The Humane Society says commercial fishing in the Atlantic threatens the recovery, and the very existence, of endangered whales. Fewer than 400 North Atlantic right whales survive, and the defendant National Marine Fisheries Service acknowledges that the "'loss of even a single individual may contribute to the extinction of the species,'" according to the federal complaint.
The Humane Society of the United States, the Defenders of Wildlife and the Whale and Dolphin Conservation Society seek an injunction and declaratory judgment that the federal agencies that are supposed to protect the whales violated the Endangered Species Act.
The National Marine Fisheries Service, National Oceanic and Atmospheric Administration assistant administrator Eric Schwaab and Secretary of Commerce John Bryson are named as defendants.
"Each year, critically endangered North American right whales and endangered humpback, fin, and sei whales become entangled in commercial fishing gear," the complaint states. "In these incidents, fishing line wraps around whales' heads, flippers, or tails, often impending basic movement, feeding, and reproduction, causing infection, and sometimes preventing the animals from resurfacing, resulting in drowning.
"The North Atlantic right whale is one of the world's most endangered large whales, with an estimated population of less than 400 individuals. In fact, the National Marine Fisheries Service ('NMFS') has previously stated that the 'loss of even a single individual may contribute to the extinction of the species.' 69 Fed. Reg. 30,857, 30,858 (June 1, 2004). NMFS has cited entanglements in commercial fishing gear as one of the most significant threats to the right whale's survival and recovery. Yet, almost every year since 2002, at least one entangled right whale has been found dead or so gravely injured that death is deemed likely. Entanglements also continue to threaten the recovery of endangered humpback, fin, and sei whales.
"Nevertheless, and only after litigation over NMFS's nine-year delay in completing consultation, NMFS issued four biological opinions on October 29, 2010 that conclude that the continued operation of four federal fisheries - the American Lobster Fishery, the Northeast Multispecies Fishery, the Monkfish Fishery, and the Spiny Dogfish Fishery (collectively, 'the fisheries') - is not likely to jeopardize the continued existence of any listed species."
The environmentalists say the deaths and injuries are continuing: "Indeed, so far in 2011 there have been at least seven new right whale entanglements, ten new humpback entanglements, and at least two right whales have died from entanglement-related injuries.
"The agency's continued authorization of these fisheries that it acknowledges will
cause the take of endangered species without an incidental take statement violates Section 9 of the ESA. 16 U.S.C. § 1538. The agency's continued authorization of these fisheries that it acknowledges will cause the take of marine mammals without a take authorization pursuant to Section 101(a)(5)(E) of the MMPA, is also arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the MMPA, in violation of the APA, 5 U.S.C. §§ 701-706."
They add: "These recent deaths, serious injuries, and entanglements demonstrate that NMFS's key assumption underlying its 'no jeopardy' finding for right whales is erroneous and thus that its 2010 Biological Opinions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, in violation of the Administrate Procedure Act."
Despite the continuing deaths, and new information about them the "NMFS has failed to reinitiate consultation as to the effects of these fisheries on endangered whales, as required by ESA's implementing regulations," the complaint states.
The environmentalist say the fisheries have failed to follow guidelines of the Marine Mammal Protection Act, whose "central purpose ... is to prevent marine mammal stocks from falling below their 'optimum sustainable population' levels" and which prohibits "actions that kill or injure mammals or disrupt behavioral patterns, such as migration, breathing, breeding, or feeding."
The NMFS claims that reducing ship speed and decreasing the amount of fishing in the areas will reduce risk to the whales. But the plaintiffs say, "NMFS fails to consider the times and areas that do not receive the protection of ship speed restrictions, the impacts from exempted vessels, and the gross lack of compliance with the speed restrictions in the places they do apply. Moreover ... NMFS also fails to consider that while federal fishing restrictions may lead to an overall decrease in federal fishing efforts, fishing is actually increasing in areas in which whales are known to frequent. NMFS's assumption that these measures will be sufficiently protective of endangered whales is misplaced, as evidenced by a series of recent deaths and injuries."
The plaintiffs seek an order "compelling NMFS to (1) reinitiate and complete consultation regarding the effects of the American Lobster, Northeast Multispecies, Monkfish, and Spiny Dogfish Fisheries on endangered North Atlantic right whales, humpback whales, fin whales, and sei whales, in order to insure the fisheries are not likely to jeopardize the species' continued existence as required by the ESA, (2) complete the analyses necessary to determine whether take of these endangered whales may be legally authorized pursuant to the ESA and MMPA, and (3) require operation of the fisheries in compliance with any mitigation measures necessary to insure compliance with both the ESA and MMPA.
They are represented by Humane Society senior attorney Kimberly Ockene, of Auburndale, Mass.
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