10/04/2017 - Regulatory Tracker

Pacific Bycatch Limits for Whales, Dolphins, and Sea Turtles

by EELP Staff

Click here to return to EELP’s Regulatory Rollback Tracker. While this is a Trump-era tracker, we continue to update these entries with early Biden administration actions. We are also developing new resources on the Biden administration available on our Environmental Governance page. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Bycatch limits – caps on the numbers of other species that can be caught when fishing for a target species – are intended to ensure healthy population numbers for fish and marine mammals. Whales, dolphins, turtles, and many other species are hauled up dead or dying in large gillnets (called this because they entangle fish by their gills) used to catch swordfish and certain shark species. Some of these “bycatch” animals are endangered and reproduce slowly, so the ripple effect of individual losses can be felt quickly across the population.

Current Status

NMFS proposed to set bycatch limits for certain whales, dolphins, and sea turtles on October 13, 2016. On June 12, 2017, the Trump NMFS retracted that proposal. Oceana challenged that retraction successfully in federal court, which ruled in its favor on November 7, 2018. NMFS initially appealed the decision to the Ninth Circuit, but later agreed to dismiss the case. NMFS published a “hard cap” rule on February 7, 2020. California fishermen have challenged that rule under the Appointments and Take Care Clauses of the federal Constitution as well as the Magnuson-Stevens Act.

History

Oct. 13, 2016 The National Marine Fisheries Service (NMFS) proposes a new regulation with limits on the numbers of whales, turtles, and dolphins that can be killed by thresher shark and swordfish fisherman in the Pacific fleet. Four species of whales (fin, humpback, sperm, and short-finned pilot), four species of sea turtles (leatherback, loggerhead, olive ridley, and green), and bottlenose dolphins are on the list of protected species. Under the proposed rule, if the “hard cap” on bycatch is reached, the fishery will be closed for up to two seasons (using a rolling two-year period).

Trump Era

June 12, 2017 The proposed rule is withdrawn.

July 17, 2017 Oceana sues NMFS over the withdrawal, alleging that the agency acted arbitrarily and violated the Magnuson-Stevens Act, by withdrawing the proposed rule. Oceana v. NOAA/NMFS. No. 2:17-cv-05146 (C.D. Cal.).

Sept. 27, 2018 Then Governor of California Jerry Brown signs Senate Bill 1017 to phase out the use of large drift gillnets in the swordfish and shark fishery. The bill establishes a four-year transition plan funded through private-public partnerships and authorizes compensation for fishermen who surrender their drift gillnet permit and used nets.

Nov. 7, 2018 The U.S. District Court in California rules in favor of Oceana. The judge sends the proposed rule back to NMFS and orders the agency to reissue the rule or to revise the proposal in consultation with the Pacific Fishery Management Council.

Jan. 2, 2019 NMFS and the National Oceanic and Atmospheric Administration (the agency that oversees NMFS) appeal the case to the Ninth Circuit Court of Appeals. Oceana, Inc. v. Ross, No. 19-55021 (9th Cir.).

April 23, 2019 All parties agree to voluntarily dismiss the pending appeal Oceana, Inc. v. Ross, No. 19-55021 (9th Cir.).

Feb. 7, 2020 NMFS publishes a “hard cap” rule for swordfish and thresher shark fishing to go into effect on March 9, 2020. 

March 6, 2020 California fishermen file a lawsuit challenging the “hard cap” rule for swordfish. They argue that the rule is unconstitutional under the Constitution’s Appointments and Take Care Clauses and that the economic impact of the rule violates the Magnuson-Stevens Act’s mandate that conservation measures “minimize adverse economic impacts.” Williams v. Ross, No. 1:20-cv-00667 (D.D.C.).