The National Marine Fisheries Service can’t expand Hawaii’s commercial swordfishing to permit deaths of endangered loggerhead sea turtles, a federal appeals court said Wednesday.
The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, ignored its own prediction that global warming would harm the turtles and expanded fishing would worsen the decline of turtles.
The appeals court reversed a lower court ruling and thus blocked the NMFS expansion of an existing permit authorizing the incidental killing of migratory birds to include the killing of loggerhead sea turtles under the permit.
The panel said the NMFS’s 2012 biological opinion of “no jeopardy” to the turtles was “arbitrary and capricious because the scientific data suggested that the loggerhead population would significantly decline, and the agency failed to sufficiently explain the discrepancy in its opinion.”
The court pointed to a climate-based model that predicted that the proposed expansion of the swordfish fishery would speed the loggerheads’ decline.
However, the court otherwise affirmed the NMFS conclusion there would be no jeopardy for the leatherback turtles and that the NMFS’s decision of no violation of the Endangered Species Act by the fishing permit was not arbitrary.
The Center for Biological Diversity and Turtle Island Restoration Network sued the NMFS in 2012 to prevent expansion of the Hawaii fishing of swordfish, despite incidental killing of turtles.
In Hawaii, the commercial shallow-set “longline” fishing of swordfish involves reeling out a single, horizontal mainline, which has shorter branch lines attached at intervals with baited hooks. Typically, longlines can use several hundred or thousand individual hooks, allowing a single fishing vessel to spread efforts over a large area.
These lines often ensnare birds, sea turtles and other marine wildlife, in addition to the swordfish, the court said.
In 2004, the NMFS imposed rules on shallow-set fishing to limit the incidental catch of leatherback and loggerhead sea turtles to a maximum of 16 and 17 respectively, per fishing vessel. It also limited the number of shallow sets to 2,120, about 50 percent of the average number in 2001.
By 2008, the NMFS had removed the 2,120 annual set limit, raising it to 2001 levels.
The trial judge originally dismissed the lawsuit, siding with the NMFS. But the appeals court said the NMFS model showed the loggerhead species is on a path toward extinction and also found that the effects of climate change would continue to impact sea turtles and their habitat.
“Rising levels of marine debris ‘could also increase entanglements.’ Even though the NMFS was unable to quantify the risks of climate change and its associated impacts, the agency recognized that they would be detrimental to the loggerheads,” wrote Judge Mary Murguia, joined by Chief Judge Sidney Thomas.
Judge Connie Callahan dissented saying she did not find the 2012 biological opinion of the NMFS to be arbitrary.
Case: Turtle Island Restoration Network v. US Dept. of Commerce, No. 13-17123