SAN FRANCISCO, Calif. (CN) — A federal judge has awarded summary judgment to environmental advocates over the National Marine Fisheries Service's handling of endangered Pacific humpback whales that get tangled in fishing gear off the Pacific coast.
U.S. District Judge James Donato ruled in favor of the Center for Biological Diversity, which sued the feds in 2022 over a permit that authorized the incidental taking of endangered humpback whales in a sablefish fishery without also putting plans into place to reduce the number of entanglements.
The organization said the permit was unlawful because the service “did not first ensure that a take reduction plan for the whales had been developed or was being developed, as required.” Under the Marine Mammal Protection Act, commercial fisheries that occasionally or frequently kill or seriously injure endangered marine mammals must have only a negligible impact on the species to qualify for an “incidental take” permit.
The center says that fishing gear entanglements are a leading threat to endangered humpbacks as they migrate along the West Coast. As climate change alters migration patterns, it has become harder for endangered humpback whales to avoid long strings of pots set out by commercial fisheries. In 2021, the service reported a 400% increase in humpback mortality and serious injury from human activities since 2018.
The feds and the center filed cross-motions for summary judgment, which Donato decided without oral argument. In this his nine-page order, Donato found “NMFS cannot indefinitely delay developing a take reduction plan while continuing to authorize permits for the incidental take of endangered and threatened humpback whales.”
“There is no dispute that NMFS issued the 2021 incidental take permit for the sablefish pot fishery without developing, or even starting to work on, a take reduction plan for the humpback whales,” he wrote. “NMFS’ own assessment of its compliance concluded that the take reduction plan requirements were satisfied because a plan was ‘on the priority list for development,’ even though it was not ‘complete” or ‘underway.’ This assessment overtly conflicts with the statutory requirement that ‘a take reduction plan has been developed or is being developed for’ the ESA-listed humpback whales.”
The center said in a statement Wednesday that the fisheries service estimates the sablefish fishery kills or seriously injures at least one humpback whale every year. Most trap and pot fisheries use static vertical lines that can wrap around whales’ mouths, fins or tails, wounding them and depleting their energy, often drowning them as they drag heavy traps and rope. Pop-up traps use lift bags or buoys on coiled ropes triggered by remote or time-release sensors to float traps to the surface, eliminating static entangling lines.
The fishery uses two-mile-long strings of 30 to 50 pots. On average, about 25 humpback whales are entangled annually off the U.S. West Coast, and more than half of entanglements are not traced to a specific fishery.
Last year marked the 50th anniversary of the Marine Mammal Protection Act, which the center calls a landmark law recognizing the “great international significance” of marine mammals.
“This is a clear win for endangered humpback whales, who face enough deadly threats in the water already,” said Kristen Monsell, oceans legal director at the center. “Fishing gear and lines in migrating humpbacks’ habitat mean more entanglements, and the fisheries service shouldn’t have ignored those risks. These majestic animals deserve to live without lethal obstacles in their way. This victory will help them recover.”
The center has proposed that the fisheries service require fisheries that use pot gear to covert to new ropeless or “pop-up” gear within the next five years. The petition requests the agency prioritize the transition in national marine sanctuaries.
Donato said in his order that the parties’ briefing suggested a question of whether the center may challenge the fishery’s 2020 biological opinion independent of the 2021 permit, and the service has asked to give another briefing on remedies. The parties will meet again in court April 20.
A National Oceanic and Atmospheric Administration spokesperson said the agency does not comment on pending litigation.
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