SAN FRANCISCO (CN) — A federal judge has advanced a lawsuit against a California state law that bans the use of swordfish-catching gillnets, which critics say can unintentionally entangle and kill sea turtles, whales and dolphins.
California Senate Bill 1017, signed by former Governor Jerry Brown in 2018, bans fishermen who dock on California shores from using drift gillnets — long walls of mesh that hang underwater and catch swordfish by the gills.
Weights and buoys are used to stretch the mile-long nets beneath the ocean's surface. The net’s mesh is large enough that swordfish can stick their heads through openings but not their bodies, thus catching them by the gills.
Two fishermen sued the state two years ago, arguing that because they obtained federal permits to use gillnets, California cannot pass a law that deprives them of those federal rights.
The fishermen — Joseph Abad and Austen Brown — asked for a preliminary injunction to block enforcement of the state law, but a federal judge denied that request.
U.S. District Judge Troy Nunley found the demand for immediate court action unjustified because California already agreed not to enforce the gillnet ban against Brown — the only plaintiff who sought injunctive relief.
“Plaintiffs have not shown Brown is likely to suffer irreparable injury for the purposes of obtaining the injunctive relief he seeks,” Nunley, a Barrack Obama appointee, wrote in a nine-page ruling issued Tuesday.
Brown’s attorney, Glenn Roper of the Pacific Legal Foundation, said the injunction denial was not based on the merits of the case. The judge’s decision to move the case forward means the fishermen can start gathering evidence to make their case that the state has no power to ban fishing equipment that is expressly authorized by the National Marine Fisheries Service.
“When the federal government sets up a permitting program, the state then can’t come in and forbid the very action the government has authorized,” Roper said in a phone interview Wednesday.
In 2016, the Obama administration proposed a rule that would have required the California Drift Gillnet Fishery to shut down for two years if large whales or sea turtles were harmed by nets. The Trump administration withdrew that proposal in 2017 and launched a new program that issues permits allowing fishermen to catch swordfish with gillnets.
In his ruling Tuesday, Nunley found the fishermen adequately alleged that the state law harms them economically because “they cannot lawfully obtain a state drift gill net permit and buyers will not purchase swordfish that is caught by drift gill net without a state permit.”
Roper said his client’s livelihood is on the line with this lawsuit.
“This is their life — this commercial fishing,” Roper said. “They’ve got federal permits and they’re ready to move forward to provide for their families. It’s just the state of California’s prohibition that’s standing in the way.”
Roper added that the federal gillnet permitting program has built-in protections — such as seasonal restrictions and the required use of sonic “pingers” to minimize the chance that threatened species will get entangled in mesh.
“It’s authorized under very particular circumstances in a way that provides a lot of protection for endangered species so that the possibility of bycatch of those species is very minimal,” Roper said.
In 2017, conservation groups criticized the Trump administration’s decision to start issuing permits to allow gillnet fishing on the West Coast.
Cassie Burdyshaw of the Turtle Island Restoration Network denounced it as an irresponsible move that put the wellbeing of the ocean's ecosystem at risk.
“Drift gillnets are walls of death that need to be phased out, not shielded from reasonable state regulations,” Burdyshaw said in a 2017 statement.
The California Attorney General’s Office and state Department of Fish and Wildlife did not immediately return requests for comment Wednesday.
Follow @NicholasIovino
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