Saving Seafood

Supreme Court to Review Endangered Species FOIA Case

March 3, 2020 — The Supreme Court is taking up the Trump administration’s legal quest to keep certain Endangered Species Act records from the public eye.

The justices agreed Monday to review a petition from two U.S. agencies trying to reverse a court order to release draft documents from a controversial species consultation process. The Freedom of Information Act case could have broad ramifications for agency disclosure in other contexts.

Government lawyers warned in their petition that allowing the order to stand would undermine a FOIA exemption that allows for “candid” communication between agencies during decision-making processes. But the Sierra Club, which filed the underlying case, says FOIA doesn’t allow agencies to shield important records simply by labeling them drafts.

“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Sierra Club attorney Sanjay Narayan told Bloomberg Law.

Some legal analysts predict that the court’s decision to take the case means the justices will side with the government.

Read the full story at Bloomberg Law

Lawsuit Launched to Save Alaska’s Cook Inlet Beluga Whales From Harmful Oil Exploration

February 3, 2020 — Conservation groups Friday threatened to sue the Trump administration for approving oil exploration in Alaska’s Cook Inlet after new federal data found a dramatic decline in the area’s population of endangered beluga whales.

The formal notice of intent to file an Endangered Species Act lawsuit asks the National Marine Fisheries Service to revoke its authorization of oil and gas activities in the area until a new legally required consultation is completed.

The administration relied on higher beluga whale numbers when, in 2019, it approved rules allowing Hilcorp Alaska LLC to harm belugas and other marine mammals as it expands offshore oil and gas operations in Cook Inlet. But on Tuesday the Fisheries Service announced the population of whales was estimated at 279, a significantly smaller and more quickly declining population than the agency had thought.

“Since we pressed for listing the Cook Inlet Beluga whale as endangered in 2008, the drive for corporate profits and complacent government bureaucrats have conspired to stifle progress for this dwindling stock,” said Bob Shavelson, advocacy director for Cook Inletkeeper. “Hilcorp should do the right thing and abandon its plans for new drilling in Cook Inlet.”

Read the full story at the Alaska Native News

Lawsuit targets Alaska salmon management to protect southern killer whales

January 27, 2020 — A conservation organization based in Washington state is threatening to sue the federal government over the management of Alaska’s chinook salmon fisheries.

The Wild Fish Conservancy claims that management strategies in Alaska approved by the government pose a threat to the survival of several salmon runs in Washington, and the killer whales who depend on them.

The Wild Fish Conservancy filed notice on January 9, stating its intentions to sue the National Marine Fisheries Service for violating the Endangered Species Act, and jeopardizing the existence of southern resident killer whales.

The Conservancy argues that an important food supply of the whales — endangered stocks of chinook salmon originating in Puget Sound, the lower Columbia River, the Willamette River, and Snake River — is being depleted by the commercial troll and sport harvest in Southeast Alaska.

Kurt Beardslee is the director of the Wild Fish Conservancy. Chinook — or king salmon — are managed under treaty between the United States and Canada, overseen by the Pacific Salmon Commission.

Read the full story at KNBA

Judge sides with Olema environmental group on sea turtle protections

January 3, 2020 — A federal judge has sided with an Olema-based conservation group in finding the federal government violated environmental laws including the Endangered Species Act by allowing longline fishing in West Coast waters without assessing threats to endangered sea turtles.

Judge Kandis A. Westmore of the U.S. District Court of Northern California wrote in her ruling late last month that the National Marine Fisheries Service’s issuance of two longline fishing permits earlier this year would “reverse protections in place for leatherback sea turtles despite continuing population declines and the agency’s admission that the extinction of Pacific leatherbacks ‘is almost certain in the immediate future.’”

As part of her Dec. 20 order, Westmore set aside the two fishing permits that were issued in May as well as the agency’s finding that the fishing would have no significant environmental impacts.

Todd Steiner, executive director of the Olema-based Turtle Island Restoration Network, which co-led the lawsuit with the Center for Biological Diversity, said the fishing permits were essentially a back-door attempt by the Trump administration to reopen longline fishing despite a 2004 federal ban. The lawsuit was filed in June.

“We have closed the back door and leatherback sea turtles are safe from drowning on the ends of longline fishing hooks,” Steiner said.

Read the full story at The Marin Independent Journal

New Puget Sound Steelhead Plan Charts Course for Recovery

December 31, 2019 — The following was released by NOAA Fisheries:

Some 8,000 aging culverts under roads and driveways around Puget Sound block threatened Puget Sound steelhead from reaching high headwaters streams where they historically spawned, forming a major obstacle to the species’ recovery.

A new recovery plan developed under the Endangered Species Act for Puget Sound steelhead addresses these impassable culverts and other threats. It provides a roadmap to help the native fish recover into self-sustaining populations and resume their prominence in Puget Sound. NOAA Fisheries developed the plan with help and support from many partners.

Nearly 1 million wild adult steelhead historically returned to Puget Sound rivers but fewer than 5 to 10 percent of that return today. Puget Sound steelhead were designated as threatened in 2007, bringing them under the protection of the Endangered Species Act.

“Puget Sound steelhead are remarkably resilient, but they have been pushed to the limit by decades of habitat loss, and adverse marine conditions,” said Elizabeth Babcock, North Puget Sound Branch Chief in NOAA Fisheries’ West Coast Region. “Based on the best available science, this plan is a solid and comprehensive blueprint for recovery.”

Recovering the steelhead that are highly valued by Northwest tribes, prized by fishermen, and preyed upon by endangered killer whales would provide ecological, cultural, and economic benefits.

Read the full release here

Putting Endangered Species on the Map

December 19, 2019 — The following was released by NOAA Fisheries:

In November, we launched Version 2.0 of the Section 7 Mapper, a new mapping tool that shows where threatened and endangered species are in New England and Mid-Atlantic waters. This tool helps people planning activities in our waters to understand where endangered marine species are and at what times of year.

Why did we build this tool?

Busy Oceans and Coasts

Coastal areas are humming with action. Ports, docks, piers, moorings, and marinas dot our shores and bays. Bridges span our rivers, barges sail up rivers to inland ports, and undersea cables criss-cross the ocean bottom. Vessels—ranging from enormous container ships and cruise ships to small recreational fishing boats and jet-skis—traverse our coastal and offshore waters daily.

People are constantly building structures, dredging shallow areas, restoring rivers and coastal habitats, replenishing beaches, and researching new sources of energy.

Underneath, around, and in between all these activities swim threatened and endangered fish, sea turtles, and marine mammals that live, feed, and grow there.

Projects Change Habitat

Human activities add noise, sediment, pollutants, and pressure to ocean habitats. They also displace these animals from spaces they use for breeding, egg-laying, nurseries, feeding, and other activities.

The Endangered Species Act (ESA) requires federal agencies, like the Army Corps of Engineers, Federal Highway Administration, Environmental Protection Agency, the Navy, and even other parts of NOAA, to consult with NOAA Fisheries on projects or activities they are planning, funding, or permitting that may affect a threatened or endangered marine species or its critical habitat. This is called a “Section 7 Consultation.”

Read the full release here

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