National Marine Fisheries Service Sued Over Alleged Endangerment of Humpback Whales

The Center for Biological Diversity filed suit on Sunday in the Northern District of California against defendants National Marine Fisheries Service (NMFS) and the Secretary of Commerce, Gina Raimondo. The complaint for declaratory and other relief alleges that the NMFS violated both the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA) when they failed to ensure that “commercial fisheries do not jeopardize the continued existence of, or cause more than a negligible impact to, threatened and endangered humpback whales.”

Recent estimates revealed that there has been a 400 percent increase in humpback whale mortality and serious injury from human activities since 2018. One of the main threats to humpback whales is entanglement in commercial fishing gear. The Pot Fishery is known to entangle humpback whales using sablefish pot gear. Using this gear, the whales can become stuck and drown, die of starvation or infection, or become painfully constricted and drag the gear behind them. Sablefish pots “sit on the bottom of the ocean and are connected to each other in approximately two-mile-long strings of 15 to 50 pots.” The strings are connected in a vertical line to a surface buoy.

The complaint claims that the defendant’s direct “authorization, permitting, oversight, and management” of the Pot Fishery has led (and will continue to lead) to the endangerment and death of humpback whales. Specifically, the defendants rely on a controversial 2020 opinion they issued that is described by the plaintiff as being biologically inadequate since it did not rely on the “best available science.” This reliance violates the agency’s duty under the Endangered Species Act to ensure that the actions it authorizes do not endanger any endangered species, or in this case, that the actions it permits do not jeopardize the existence of humpback whales.

In 2021, the defendant issued an MMPA permit “for the taking of threatened and endangered humpback whales in the Pot Fishery,” which the plaintiff asserts is faulty because of the method they used to make an impact determination. The defendant made the impact determination for the permit based on fishing gear mortality from the Pot Fishery but failed to consider fishing gear mortality outside of the Pot Fishery. The defendant also failed to provide a reduction plan alongside the 2021 permit, despite a reduction plan being required.

The complaint cites multiple violations of the Endangered Species Act, the Marine Mammal Protection Act, and the Administrative Procedure Act. As a result of these violations, the Center for Biological Diversity is seeking a declaration of these violations, for both the 2020 biological opinion and 2021 permit to be vacated, injunctive relief, litigation costs, and any other relief deemed proper by the court.