(CN) – The 9th Circuit on Wednesday upheld an agreement between environmental groups and the government meant to protect loggerhead and leatherback sea turtles from commercial fishing activities.
The consent decree came after years of litigation over management of the Hawaii shallow-set, swordfish longline fishery. Among other things, the agreement returned the incidental take limit for the sea turtles to around 17 from a high of 46.
The Hawaii Longline Association challenged the agreement, arguing that it violated the Administrative Procedure Act and the Magnuson-Stevens Act, which governs fishery management. The group claimed that the National Marine Fisheries Service lacked the statutory authority to settle with the lawsuit’s original plaintiffs – Turtle Island Restoration Network, Center for Biological Diversity and KAHEA: The Hawaiian Environmental Alliance.
A three-judge panel of 9th Circuit in Honolulu unanimously upheld the agreement Wednesday.
“The consent decree does not purport to make substantive changes to the fishery regulations, so the rulemaking provisions of the Magnuson Act and the APA do not apply,” Judge Alfred Goodwin wrote for the court. “The district court did not clearly err in finding that a return to lower incidental take limits is more protective of loggerhead turtles.”
The agreement stipulated that the lower take limit remain in effect until the agency issued a new biological opinion and regulations on the issue. In January, it predicted incidental takes of up to 34 loggerhead and 26 leatherbacks annually.
Those numbers do not portend a quick resolution of the issue. Earthjustice Hawaii attorney Paul Achitoff, who argued the case for the environmental groups, told Courthouse News on Wednesday that his clients don’t like the new take limits.
“This [biological opinion] is in some respects worse than the last one,” he said in a phone interview. “We are unhappy with what the fishery service is proposing.”
Late last year, partially in response to a petition from the plaintiffs in the present case, the National Marine Fisheries Service “uplisted” the North Pacific Ocean distinct population segment of loggerhead turtles as endangered.