Shark Lovers Win a|Round in Federal Court

(CN) - The Secretary of Commerce must face claims that she failed to list the Northwest Atlantic Porbeagle shark population as endangered despite ample scientific evidence, a federal judge ruled.

Porbeagles are large, fleshy sharks found in cold and temperate ocean waters of the North Atlantic and the Southern Hemisphere. They typically grow up to 12 feet long and weigh 500 lbs., and are characterized by dark blue or gray dorsal skin, large black eyes and pointed snouts.

They primarily eat small fish such as herrings and mackerels, squid and smaller sharks. Though they are large enough to hurt humans, "Only two unprovoked attacks have been reported," according to the Porbeagle page at Marinebio.org.

The Humane Society of the United States and WildEarth Guardians petitioned the National Marine Fisheries Service in January 2010 to list the Porbeagle's Northwest Atlantic population as threatened or endangered under the Endangered Species Act.

Found off the coast of Greenland, Canada, and along the U.S. Eastern Seaboard from Maine to New Jersey, this population is a small group that has lost 90 percent of its members, and has suffered population collapse several times since the 1960s, according to the groups' original complaint.

Their numbers also are threatened by coastal pollution from industrial sources, climate change that warms the ocean, overfishing by commercial fisheries that underreport Porbeagle landings, and lack of monitoring systems to regulate Porbeagle catch on the high seas, the complaint adds.

Despite these threats, the NMFS issued a negative 90-day finding denying the groups' petition, for lack of scientific evidence that the Northwest Atlantic population was a distinct population segment or that it was in need of protection.

The groups challenged the decision in an August 2011 lawsuit, which was consolidated with two other complaints in September 2012.

Among other things, the groups argued that the NMFS ignored the ample evidence in their petition that the Northwest Atlantic population is in decline and in need of protection, and instead "applied an erroneous legal standard, requiring that the petition provide conclusive evidence that the Northwest Atlantic population is a distinct population segment as well as conclusive evidence that the threats to the Porbeagle shark will lead to extinction."

In denying the petition, the NMFS relied on a 2009 assessment from the International Council for the Exploration of the Seas and the International Commission for the Conservation of Atlantic Tunas to conclude that though Porbeagle stocks are depleted, their numbers are stabilizing and are on the rise, according to U.S. District Judge Barbara Rothstein's ruling.

Rothstein, in the District of Columbia, agreed with the Humane Society that the NMFS' rejection of the petition was arbitrary and capricious.

Rothstein agreed with plaintiffs that the NMFS "appl[ied] an inappropriately stringent evidentiary requirement at the 90-day stage" when it demanded "conclusive evidence" that the Northwest Atlantic population was a distinct segment.

The agency's own conclusion that further analysis was needed to determine if distinct Porbeagle populations existed would lead a reasonable person to conclude that a review of the status of the species was necessary, Rothstein found.

However, the NMFS did properly "evaluate plaintiffs' petitions with regard to both the whole population of Porbeagles or as to the DPSs [distinct population segments] proposed by plaintiffs," the ruling states.

The groups had more success on their argument that the NMFS arbitrarily interpreted data from the 2009 assessment in the most positive light and ignored other, more likely analyses of Porbeagle population trends.

Rothstein agreed that rather than being likely to grow, the data suggest that Northwest Atlantic Porbeagle stocks are more likely to decline, and are thus need protection.

Ignoring this evidence and failing to explain why it was not enough to warrant a positive 90-day finding was arbitrary and capricious, Rothstein found.

She rejected the NMFS's argument that it issued a negative 90-day finding because stock assessments indicate that Porbeagle populations are increasing, and that the groups' petitions did not include enough scientific evidence for population decline to meet the substantial information standard at the 90-day stage.

Among other resources, the groups relied on the same assessment in their petitions that the NMFS declared as the best source of data on Porbeagle populations, which itself concludes that Porbeagles may require listing as threatened or endangered to help their populations recover.

"This evidence is a far cry from the 'statements in petitions that constitute unscientific data or conclusions, information [the agency] knows to be obsolete, or unsupported conclusions of petitioners' that have been rejected by other courts as meeting the 90-day finding standard," Rothstein wrote. (Brackets in original.)

The NMFS's attempt to compare this matter with the court's previous decision upholding the agency's rejection of the groups' Magnuson-Stevens Act claims failed to persuade the judge.

"The court reaches a different outcome in the instant motions because of the differing statutes and implementing regulations at issue," Rothstein wrote. "The Magnuson-Stevens Act, concerned with fishery management and conservation, sets a higher evidentiary bar for plaintiffs to meet than the Endangered Species Act. ...

"A 90-day determination under the Endangered Species Act constitutes a 'threshold determination,' and plaintiffs need only provide 'that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted."

Since the NMFS acted arbitrarily and capriciously, Rothstein vacated the negative 90-day finding and ordered the agency to "reconsider plaintiffs' petitions in light of the court's ruling."

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