Saving Seafood

Gillnet Fishing: Closed Area I and Nantucket Lightship Closure Areas

November 4, 2019 — On October 28, 2019, Federal District Court Judge James E. Boasberg issued an Order and Opinion on a lawsuit challenging a portion of the New England Fishery Management Council’s Omnibus Essential Fish Habitat Amendment 2.

The Order prohibits NOAA Fisheries from allowing gillnet fishing in the former Nantucket Lightship Groundfish and the Closed Area I Groundfish Closure Areas, until such time as NOAA Fisheries has fully complied with requirements of the Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act, consistent with the Opinion.

NOAA Fisheries is studying the Opinion and will put regulations in place as soon as possible to comply with the Order to close the areas to gillnet fishing until further notice.

Read the full story at NOAA Fisheries

In Court Ruling on Right Whales, Good News for Scallop Fishery

October 30, 2019 — The following was released by the Fisheries Survival Fund:

A federal district court has ruled this week that the National Marine Fisheries Service (NMFS) violated both the Endangered Species Act and Magnuson-Stevens Act in allowing gillnet fishing in areas frequented by right whales. While the Fisheries Survival Fund (FSF) was a Defendant-Intervenor in the case, the ruling contains good news for the scallop fishery.

At issue are provisions in Omnibus Habitat Amendment 2 (OHA2), which updated the network of closed areas and habitat protections off the coast of New England. The suit, filed by the Conservation Law Foundation and Earthjustice, alleges that OHA2 put right whales at risk by opening offshore areas near Nantucket to commercial fishing.

While the U.S. District Court for the District of Columbia ruled that allowing gillnet fishing in these areas did have the potential to harm right whales, and thus violated the Endangered Species Act, the Court’s ruling does not affect the scallop fishery, which will continue to be allowed to operate in these areas.

Specifically, the Court noted, “because Plaintiff’s summary-judgment motion does not contest the Habitat Amendment’s changes to the Scallop [Fishery Management Plan], Defendant-Intervenor Fisheries Survival Fund’s arguments, which relate only to that fishery, are rendered moot.”

This means that while the Court acted to prevent gillnet fishing in the newly opened areas, it did not overturn OHA2, nor did it stop scallop fishing in these areas. This is consistent with FSF’s long-standing position in the case, which is that the scallop fishery is not a threat to right whales, and that scallop fishing is not impacting right whale conservation.

Read the full opinion here.

Read the full order here.

Federal judge renews ban on gillnet fishing in Nantucket area to protect whales

October 30, 2019 — A federal judge in Washington, DC, on Monday ruled that the US’ National Marine Fisheries Service (NMFS) violated the Endangered Species Act, Magnuson Stevens Act, and other federal laws when it removed a roughly 20-year-old ban last year on gillnet fishing within a 3,000 square mile area south and east of the Massachusetts island Nantucket.

US District Court judge James Boasberg has renewed the ban in order to protect North Atlantic right whales, the Boston Globe reports. He said, in his 32-page ruling, that his decision was “not a close call” and quoted Herman Melville’s “Moby Dick”.

“Demonstrating that ‘there is no folly of the beasts of the earth which is not infinitely outdone by the madness of men’ … humans have brought the North Atlantic right whale to the brink of extinction,” he wrote.

Boasberg’s ruling does not apply to the scallop industry, which will be allowed to continue using its dredging equipment in the area, as it has not been found to harm the marine mammals.

Read the full story at Undercurrent News

Court Battle Underway Over Revamped Endangered Species Rules

October 8, 2019 — A major fight is shaping up in federal court over the Trump administration’s recently issued rules that rewrite how the government implements the Endangered Species Act.

The battle was broadened on Sept. 25 when attorneys general from 17 states, the District of Columbia and New York City filed a challenge to the regulations in U.S. District Court in San Francisco.

In their lawsuit, the plaintiffs, led by California Attorney General Xavier Becerra, contend that the set of three new final rules—published in the Federal Register on Aug. 27 by the U.S. Fish and Wildlife Service and National Marine Fisheries Service— “fundamentally undermine and contradict” Endangered Species Act requirements.

Two of the regulations took effect on Sept. 26. The effective date for the third, which aims to expedite “interagency cooperation”  procedures in listing species as endangered, was extended to Oct. 28.  [View 8/12/19 ENR story on regulations here.]

Among other changes, the rules set a stricter definition of “critical habitat” needed for an endangered species to survive; end a practice of giving threatened species the same protections as endangered species; allow economic factors to be aired—though not as a decisive factor—when agencies determine whether to list a species as endangered.

Read the full story at The Engineering-News Record

Ninth Circuit Orders Feds to Reexamine Army Corps’ Harm to Native Fish

October 8, 2019 — SEAFOOD NEWS — The National Marine Fisheries Service owes an explanation for why it decided that two dams on the Yuba River do not adversely affect threatened Chinook salmon, steelhead and green sturgeon, three Ninth Circuit judges ruled Thursday.

“The Ninth Circuit said you’re entitled to change your mind, but you’ve got to explain yourself and you haven’t,” said Christopher Sproul, an attorney with San Francisco-based Environmental Advocates. “We think this is an excellent win vindicating good government. If agencies are going to have environmental rollbacks, they can’t do it without good reasoning.”

The case marks the latest turn in a long-running dispute over the Army Corps of Engineers’ maintenance of the aging Daguerre Point and Englebright dams, both built before the passage of the Endangered Species Act.

According to environmental groups, the dams have long posed an impediment to migrating salmon. The over 100 year-old Daguerre Point has fish ladders, albeit crude and aging, over which salmon struggle to swim to reach their spawning grounds. But the 260-foot-high Englebright Dam, built in 1941, has no fish ladders at all and completely blocks fish passage to the upper Yuba River.

Since 2002, the service has considered the Corps’ maintenance of the dams an “agency action” that requires the Corps to comply with federal environmental law that protect threatened species.

As late as 2012, the service found the Corps’ activities were likely to harm salmon populations, but it suddenly reversed course in 2014 when it issued a biological opinion and a separate letter concurring with the Corps’ biological assessment for the Englebright Dam and adjoining powerhouses.

The service basically stopped treating the Corps’ activities as an “agency action,” effectively letting the Corps off the hook for its effect on the environment.

The Corps began consulting with the service in 2000 to improve passage, but salmon populations have continued to decline from their failure to mitigate the dams’ impacts.

In 2012, the service found the Corps’ activities were likely to harm the salmon species, but it suddenly reversed course in 2014 when it issued a biological opinion and a separate letter concurring with the Corps’ biological assessment for Englebright and its abutting hydroelectric facilities.

In 2018, the environmental non-profit Friends of the River lost a federal lawsuit over the service’s opinions on summary judgment.

On Thursday, the appellate court panel of Judge J. Clifford Wallace, Carlos Bea and Michelle Friedland ordered the federal court to take another look at the case.

“FOR argues that the Service acted arbitrarily and capriciously in changing its approach to analyzing the dams’ impact on threatened fish because the service did not provide a reasoned explanation for the change. We agree,” the judges wrote.

They found the service offered no explanation for why it changed its position.

“Given the Service’s failure to provide a reasoned explanation for why it changed positions on whether the continued existence of the dams and the hydroelectric facilities abutting Englebright constitute agency action, the district court erred in finding that the Service’s 2014 BiOp and LOC were not arbitrary and capricious,” their ruling says.

The judges also ordered the lower court to revisit Friends of the River’s claim that the Corps improperly granted licenses and easements to third parties to operate the hydroelectric facilities.

“The Ninth Circuit ruling underscores the principle that still exists in this country – that facts and law matter,” Sproul said.

The National Marine Fisheries Service was unavailable for comment late Thursday.

This story was originally published on SeafoodNews.com, a subscription site. It is reprinted with permission. 

The next big California vs. Trump fight is over water and endangered species

October 7, 2019 — Just how far will California Gov. Gavin Newsom go in his high-profile fight with the Trump administration over environmental protections?

The next few months will provide an answer, as Newsom is forced to take a stand on Trump rollbacks in a long-contested battleground—the Northern California  that helps supply more than half the state’s population with drinking  and fills irrigation canals on millions of acres of farmland.

The battle lines are not nearly as clearly drawn as they are on climate change or air pollution, where the state is presenting a fairly unified front against Washington. When it comes to California water, there is no unity.

Some of the state’s biggest and most powerful water agencies are eager for the  to weaken endangered species protections that have cut their delta deliveries. And they want the Newsom administration to go along.

Read the full story at PHYS.org

Feds propose major habitat protections for killer whales

September 20, 2019 — U.S. protections for the waters that a group of endangered orcas call home could soon expand beyond the Seattle area to encompass much of the West Coast, from the Canadian border to central California.

The National Oceanic and Atmospheric Administration issued a proposal Wednesday to increase the critical habitat designation for southern resident killer whales by more than sevenfold under the Endangered Species Act.

Just 73 orcas remain in the Pacific Northwest population, the lowest number in more than three decades. They’re struggling with a lack of chinook salmon, their preferred prey, as well as toxic contamination and vessel noise.

The NOAA proposal calls for an additional 15,626 square miles (40,471 square kilometers) of federally protected habitat that would run from the border with Canada, down south to Point Sur, California.

The designation means federal agencies must ensure that activities they pay for, permit or carry out do not harm the habitat, but it does not generally affect approved recreational or commercial activity such as whale watching and shipping, said Lynne Barre, NOAA Fisheries’ recovery coordinator for the whales.

Read the full story at The Associated Press

Suppressed federal report shows how Trump water plan would endanger California salmon

August 22, 2019 — Federal officials suppressed a lengthy environmental document that details how one of California’s unique salmon runs would be imperiled by Trump administration plans to deliver more water to Central Valley farms.

The July 1 assessment, obtained by the Los Angeles Times, outlines how proposed changes in government water operations would harm several species protected by the Endangered Species Act, including perilously low populations of winter-run salmon, as well as steelhead trout and killer whales, which feed on salmon.

But the 1,123-page document was never released.

Read the full story at The Sacramento Bee

Environmental groups say they’ll sue over green sea turtle habitat

August 15, 2019 — The United States should designate more critical habitat for the endangered green sea turtle, according to three environmental groups that say they will sue the government to force it to declare additional protected areas.

The groups filed a formal notice of intent Tuesday to sue the Fish and Wildlife Service and Acting Secretary of the Interior David Bernhardt. The plaintiffs are the Center for Biological Diversity, Sea Turtle Oversight Protection and Turtle Island Restoration Network.

The lawsuit notification comes as the Trump administration announced major changes to the enforcement and rule-making surrounding the Endangered Species Act. The new rules are to take effect 30 days after the administration publishes them in the Federal Register, but they only will impact new decisions.

Read the full story at UPI

Rep. Bishop Statement on ESA Regulatory Reforms

August 12, 2019 — The following was released by The Office of Congressman Rob Bishop (R-UT):

Today, Ranking Republican Rob Bishop (R-Utah) issued the following statement on the Trump administration’s regulatory reforms to the Endangered Species Act (ESA).

“Under the previous administration, the Endangered Species Act strayed woefully far from its original intent. The Act was morphed into a political weapon instead of a tool to protect wildlife. Secretary Bernhardt’s dogged dedication to righting this wrong is again made apparent today.

“These final revisions are aimed at enhancing interagency cooperation, clarifying standards, and removing inappropriate one-size-fits-all practices. I look forward to supporting efforts in Congress to enshrine these revisions into law.”

Background:

Signed into law in 1973, the original goal of the ESA was to preserve and recover key domestic species from the brink of extinction. However, today the law is failing to achieve its primary purpose of species recovery and instead has become a tool for litigation that drains resources away from real recovery efforts on the state, tribal and local level and blocks job-creating economic activities. Congress last renewed the ESA in 1988, which means it has been over 30 years since any substantial updates have been made.

In 2017 and 2018, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service sought public input on how the federal government can improve upon ESA’s regulatory framework. The changes finalized today aim to modernize the implementation of the ESA in order to improve collaboration, efficiency, and effectiveness.

To view the final ESA implementation regulation revisions CLICK HERE.