Feds sued to protect endangered turtles, whales, sharks from fishing lines

Environmentalists say the feds haven’t done the required consultations to keep protected species from being caught as incidental take by tuna fisheries.

by Candace Cheung, Courthouse News, February 23, 2023

HONOLULU (CN) — The Conservation Council for Hawaii sued National Marine Fisheries Service fisheries in Hawaii and American Samoa for delaying consultations meant to ensure the fisheries are properly managing incidental catch species including several endangered sea turtle, whale and shark species.

In a lawsuit filed Wednesday, the Conservation Council and Michael Nakachi, a Native Hawaiian cultural practitioner, claim the longline fisheries have been exceeding their incidental take limits for nearly nine years in violation of the Endangered Species Act.

The fisheries’ longline fishing gear, miles long mainlines with baited hooks extending vertically into the water, primarily targets tuna but has no way to exclude nontarget marine animals, luring in and eventually killing hundreds of species including endangered ones.

“By failing to complete the consultations, NMFS is failing to ensure that these fisheries do not jeopardize the continued existence of these species or destroy or adversely modify their critical habitat, in violation of ESA Section 7 and its implementing regulations,” the plaintiffs say in the complaint.

Earthjustice, on behalf of the Conservation Council, first initiated action against the agency in May 2022, asking for consultations and reports to be done on oceanic whitetip sharks, which had been recently designated by the Endangered Species Act and did not have previously established take limits. All parties stipulated to a voluntary dismissal after the fisheries service promised to complete the consultations, which it submitted in September. The plaintiffs say this wasn’t enough.

“The government decided to complete the consultation process but only for two of the species that they had to originally look at, the oceanic whitetip shark and giant manta ray, after the lawsuit was filed. But there are all the other species left to be assessed,” Earthjustice attorney Ava Ibanez Amador said in an interview.

The new suit pinpoints the green sea turtle, olive ridley sea turtle, loggerhead sea turtle, hawksbill sea turtle and the leatherback sea turtle, which vulnerable to injuries to the mouth and gut if they swallow fishing hooks. The sea turtles also often become entangled in the fishing lines, preventing them from being able to swim up to surface for air.

This longline fishing gear also affects critical habitats for the scalloped hammerhead shark, sperm whale, and Main Hawaiian Island insular false killer whale. All these species are considered either endangered or threatened..

The Conservation Council claims the Hawaii fishery has killed nearly twice the number of turtles through 2017-2019 than its limits should allow for.

The plaintiffs claim they and the endangered creatures have been injured by at least four years of delays by the fisheries service since they first notified the federal agency about their concerns, not just for the whitetip shark, but for all the species.

Ibanez Amador noted the consultation process is meant to be completed within months. The plaintiffs claim the agency has attempted to dodge completing the consultations since 2019 by changing its expected completion dates nine times.

“Once they complete that assessment, then they issue the biological opinion, which contains the biological analysis they did on the species, as well as the incidental take statement and any other measures they included to protect the species," Ibanez Amador said. "Once they have a biological opinion, that’s what dictates the take limits and if it gets exceeded again they have to reinitiate consultation again.”

The fisheries still operate on outdated consultations and biological opinions completed in 2017 for the Hawaii fishery and in 2015 for the American Samoa fishery.

Each of these species are a key element to the health of the ocean ecosystem at large. The Conservation Council worries continued abuse of these species will adversely affect their habitat to unfixable levels, as the species are at particular risk for extinction. Aside from environmental concerns, sea turtles, sharks, and whales all occupy important spaces in Native Hawaiian cultural and spiritual practices.

Other defendants include the National Oceanic and Atmospheric Administration and Department of Commerce Secretary Gina Raimondo. The fisheries service said via email that they are unable to comment on matters of litigation.

The plaintiffs want a judge to order the agency to complete the required consultations and publish the final biological reports within 90 days, and to declare the fisheries service has violated the Endangered Species Act.