Saving Seafood

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. 

Federal Regulators Take Heat From Both Sides Of The Right Whale-Gear Debate

October 4, 2019 — Federal fisheries regulators are taking heat from both sides of the debate over protections for the endangered North Atlantic right whale.

The latest salvo comes from a conservation group representing public employees, which says the National Marine Fisheries Service (NMFS) ignored its own scientists when it reopened groundfishing areas that had been closed for decades.

Earlier this year, NMFS reopened 3000 square miles of ocean south of Nantucket to groundfishing, allowing the use of gillnets and rope. The agency said that based on previous regulatory reviews and some more recent scientific articles, it could not find sufficient evidence to conclude that fishing gear alone causes a decline in the health of large whales — and that further review was not necessary.

Conservationists say the agency cherry-picked the evidence.

Read the full story at Maine Public

Federal agency accused of misrepresenting views of its scientists in opening fishing grounds off Cape

October 4, 2019 — Without citing its sources, the group told the inspector general of the Commerce Department, which oversees the Fisheries Service, that it has “reason to believe” that there are e-mails, memos, and other internal communications that support their allegations that the agency’s officials were responsible for “blatantly mischaracterizing” the recommendations of its scientists on whether to open 3,000 square miles of popular feeding grounds for right whales to fishermen. The move, made under pressure from the fishing industry, outraged environmental advocates.

“An internal review process would likely reveal a disagreement within the agency, or a failure to take into account the advice of … its own right whale scientists, or true ‘agency expertise,’” Whitehouse wrote.

Officials at the Fisheries Service and the Commerce Department declined to comment on the complaint. An official at the inspector general’s office said he had yet to review the complaint.

Representatives of the scallop industry, which has been allowed to access the newly opened areas and has earned millions of dollars from their catch, said they were operating safely.

“Scallopers have been fishing for years, and there’s not a single known interaction with a right whale,” said Drew Minkiewicz, an attorney at the Fisheries Survival Fund in Washington D.C., which represents the scallop industry. “If we’re not impacting them, then why should we be restricted from the area?”

But scientists say that other fisheries, such as those that use fixed gear like lobster traps, pose a grave threat to right whales. That threat has increased in the waters off Nantucket, where more right whales have been spotted in recent years.

Read the full story at The Boston Globe

Feds Eye Lobstermen’s Concerns About Plan to Save Whales

October 3, 2019 — The federal government says it’s considering the concerns of a lobster fishermen’s group about a plan to try to save an endangered species of whale.

The plan concerns the North Atlantic right whale, which numbers only about 400. The Maine Lobstermen’s Association pulled its support from the plan this summer because of concerns it placed too much onus on lobstermen, who would be called to remove miles of trap rope from the water.

The lobstermen’s group’s concerns included that right whales are also subject to entanglement in fishing gear in Canadian waters. Chris Oliver, assistant administrator for the National Marine Fisheries Service, released a letter Wednesday that said the U.S. is working with Canada to reduce that problem.

Read the full story at NECN

NC Fisheries Woes Not Listed in NOAA Report

October 3, 2019 — The National Marine Fisheries Service in August released its 2018 annual report on the status of U.S. fisheries to Congress, and the good news is that the total number of stocks on the overfishing list remained near all-time lows and one previously overfished stock was rebuilt.

In addition, new information became available last year for several stocks, which resulted in first-time status determinations with only one of the stocks subject to overfishing as well as being overfished.

The bad news, though, is that, “The total number of stocks listed as overfished increased, due to a number of factors, including those outside the control of domestic fisheries management.”

More recently, North Carolina’s fisheries director said neither of the federal lists includes two of the state’s most important species in need of rebuilding.

Read the full story at Coastal Review Online

NEFMC Approves 2020-2023 Atlantic Deep-Sea Red Crab Specs

September 24, 2019 — The following was released by the New England Fishery Management Council:

The New England Fishery Management Council today voted on new specifications for the Atlantic deep-sea red crab fishery that will increase total allowable landings (TAL) by 12.7% for the next four fishing years. The proposed TAL for 2020-2023 is 2,000 metric tons (mt), a 225-mt increase from the long-standing 1,775-mt landings cap that has guided this fishery for the past three specification cycles.

The Council supported the increase based on a recommendation from its Scientific and Statistical Committee (SSC), which used the best information available for this “data poor” stock. The National Marine Fisheries Service (NMFS/NOAA Fisheries) must review and approve the new specifications before the revised landing limit can be implemented. The red crab fishing year begins on March 1.

Read the full release here

Scientists blast Maine lobstermen’s whale safety stance

September 24, 2019 — Eighteen scientists who work in North Atlantic right whale research and rescue have said the Maine lobster industry is “significantly underestimating” the harm their equipment causes.

The scientists have called on the state of Maine to support the National Marine Fisheries Service in developing new rules to protect the whales from lobster gear injuries.

“Reducing entanglement in East Coast waters of the United States is a critical part of a comprehensive strategy for right whale survival and recovery,” Scott Kraus, chief scientist for marine mammals at New England Aquarium’s Anderson Center for Ocean Life, and Mark Baumgartner, associate scientist at Woods Hole Oceanographic Institution and chairman of the North Atlantic Right Whale Consortium, said in a letter Tuesday to Sen. Susan Collins, R-Maine.

In addition to Kraus and Baumgartner, other scientists at WHOI and the Anderson Center for Ocean Life in Boston signed the letter, as well as leaders from the Center for Coastal Studies in Provincetown and the International Fund for Animal Welfare, which has an operations center in Yarmouth Port.

Read the full story at the Cape Cod Times

Something killed 121 gray whales this summer. Scientists are scrambling to find out what

September 19, 2019 — Something killed 121 gray whales this spring and summer, and scientists are struggling to find out what it was.

The dead giants of the ocean washed up on West Coast beaches as they finished their annual epic migration to their winter feeding grounds between Alaska and Russia. Many were emaciated and appeared to be starving.

The near-final death count, tallied this week, makes this the second-worst year on record for gray whales, which were hunted almost to extinction in the late 1800s. It could represent as much as 10% of the species’ total population.

“I wouldn’t be surprised if our team comes across other carcasses,” said Megan Ferguson, a fisheries biologist with the Cetacean Assessment and Ecology Program of the National Marine Fisheries Service.

Read the full story at USA Today

Dead right whale off New York raises toll — and pressure on NOAA

September 18, 2019 — A dead North Atlantic right whale found floating off New York’s Long Island Monday afternoon could raise the official death toll of the endangered species to 29 in the last two years, jacking up pressure on the U.S. and Canadian governments to slow those losses.

The latest find comes less than a week after Chris Oliver, NMFS administrator, said the agency will move ahead with rulemaking to reduce the risk of whale entanglements in fishing gear — despite a withdrawal of support for proposed measure by the Maine lobster industry.

“We intend to address the threats posed by gillnets and to humpback whales at future (Atlantic Large Whale) Take Reduction Team meetings,” Oliver said in a statement issued Sept. 11.

NMFS officials said the carcass was discovered 4 miles south of Fire Island Inlet, and was so decomposed that its age, sex and cause of death could not be determined immediately.

Read the full story at National Fisherman