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Lawsuit calls for feds to protect California humpback whales from gill nets

Environmental advocates claim the feds are allowing a fishery to operate that enables entanglements that can kill Pacific humpback whales every year.


SAN FRANCISCO (CN) — The Center for Biological Diversity is suing National Oceanic and Atmospheric Administration Fisheries, claiming it is not protecting endangered Pacific humpback whales from entanglements in California drift gillnets. 

The Center, in the lawsuit filed in federal court Thursday, claimed that in the past two fishing seasons, about 12 Pacific humpbacks were caught in the California drift gillnet fishery. Researchers claim this excessive harm to endangered humpback whales violates the Endangered Species Act.

Whales caught in drift gillnets can drown or become constricted by nets as they swim away, causing stress, injuries and infections. This makes any entanglement of a humpback whale in drift gillnet gear an unlawful “take” under the act.

The fishery allegedly leaves mile-long hanging nets in the ocean overnight to catch large fish like Pacific bluefin tuna, swordfish and thresher sharks. The fishery then discards more than half of the fish caught, the lawsuit alleges. The fishing effort takes place from Aug. 15 through Jan. 31 and overlaps with important areas for sea turtles, threatening those endangered animals as well.

The Center claims NOAA Fisheries failed to adequately analyze the impact on the humpback populations listed under the act in 2016. Entanglements can lead to death, injury and lower calving rates in whales.

“This struggling humpback whale population faces numerous threats, and these absurdly huge nets are one more hazard they can’t avoid,” said Catherine Kilduff, an attorney at the Center. “Whales off California are swimming through a treacherous gillnet gauntlet, and we need to get the nets out of their habitat to give them a chance to recover. But the Fisheries Service is sitting on its hands while whales suffer.”

The Center reports that gear entanglements are a leading threat to migratory endangered humpbacks along the West Coast. About 48,521 square nautical miles were designated as a critical habitat for the species in 2021 but humpback whale entanglement reports increased between 2014 to 2017. The record high was 53 entanglements in 2016. 

The lawsuit claims NOAA Fisheries has observed fewer than 20% of gillnet sets in the past two fishing seasons and the Center estimates that two whales observed tangled in nets, about 11.7 humpbacks were caught. 

‘’The Fisheries Service has continued to authorize, permit, oversee and manage the drift gillnet fishery in the same manner the agency acknowledges will cause humpback whale entanglement, injury and death,” the Center claimed in the new complaint. “The Fisheries Service’s authorization, permitting, oversight, and management of the drift gillnet fishery has caused, and will likely continue to cause, the entanglement, injury, and death of threatened and endangered humpback whales.”

The most vulnerable humpback whale population spends winters in Central America and has about 1,500 individuals. They feed almost exclusively around California and Oregon coasts, while the threatened Mexico coastal population has about 2,900 individuals.

California Senate Bill 1017, which was signed into law in 2018, directed the California Department of Fish and Wildlife to establish a voluntary transition program to incentivize drift gillnet permittees to transition out of the drift gillnet fishery. However, former President Donald Trump vetoed federal legislation that would have gradually ended the use of drift gillnets off the West Coast in 2020.

“California’s drift gillnet law was a great step, but we’ve seen that it isn’t enough to keep humpbacks from getting entangled,” said Kilduff. “We also need federal agencies to do their part and protect this dwindling population from harm.”

The Center is recommending that the Service close the area in Southern California where two humpback whales were entangled and ensure the fishery is not jeopardizing the continued existence of the species. The lawsuit asks for a judge to declare that the Fisheries Service has violated the act by taking listed species without a valid incidental take statement; find that the failure to reinitiate consultation violates the act or declare that the Service is delaying the required consultation and publication of a biological opinion; and demand the agency declare that its management of the fishery will not jeopardize Central America or Mexico humpback whales. 

The Service should be required to complete and publish a final biological opinion within 90 days and the judge should issue injunctive relief, such as closing the drift gillnet fishery in high-risk areas, the complaint said.

NOAA Fisheries public affairs officer Lauren Gaches said via email that the agency cannot comment on legal matters.

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