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Protecting False Killer Whales in Hawai'i

The false killer whales (Pseudorca crassidens) of Hawaiʻi are in trouble. And sadly, humans are to blame.

One of the larger members of the dolphin family, false killer whales are rarely seen by humans, as they prefer deep tropical waters. The largest known population lives in the Eastern Pacific.

When the Hawaiʻi-based longline fleet catches yellowfin tuna, mahi mahi, and other target species on its hooks, false killer whales are attracted to this all-you-can-eat buffet and are often wounded or killed by the gear. Typical injuries include dorsal fin damage or hooking with trailing gear that leaves the whales unable to swim, gather food or reproduce. Whales can also get tangled in the longliners' miles of lines and drown.

Prior Earthjustice lawsuits forced the National Marine Fisheries Service finally to come up with a plan to reduce the harm done to false killer whales. NMFS has failed to finalize and implement the plan, so Earthjustice went back to court to get the protections put in place. In October 2012, NMFS settled the case by pledging to finalize and implement protections for false killer whales by November 30, 2012.

"This case vividly illustrates why it is vital for citizens to be able to access the courts to hold government agencies accountable," said attorney David Henkin of Earthjustice's Mid-Pacific regional office. "It has taken three lawsuits over nearly a decade to compel the Fisheries Service finally to protect Hawaiʻi's false killer whales. Without citizen suits, the agency may well have dragged its feet until it was too late to save these unique marine mammals."

The Longline Fleet: A Deadly Fishery

In November 2003, Earthjustice had filed suit on behalf of Hawaiʻi community group Hui Malama i Kohola, the Center for Biological Diversity, and Turtle Island Restoration Network to force the National Marine Fishery Service to increase protection for false killer whales.

These are intelligent mammals that deserve not to be indiscriminately killed in order to put a tuna fish sandwich together. – Attorney David Henkin

In 2004, the agency formally classified the longline fleet as Category I, a designation for fisheries that annually kill and seriously injure marine mammals at unsustainable rates. This designation should have begun the process of protecting the false killer whale, but the agency never developed a plan. So Earthjustice filed a second lawsuit in March 2009. That litigation succeeded in prompting the agency to establish a team to help develop a plan to reduce "take" of (harm to) the whales.

NMFS prepared a draft take reduction plan and was required to finalize the plan and implementing regulations no later than December 16, 2011, but failed to do so, which is why we're back in court. A study by the Government Accountability Office emphasized that delays in finalizing take reduction plans "could result in continued harm to already dwindling marine mammal populations."

Attorney David Henkin said, "Hawaiʻi’s marine mammals are paying with their lives for the Fisheries Service's refusal to comply with the law."

"This case vividly illustrates why it is vital for citizens to be able to access the courts to hold government agencies accountable."

David Henkin
Staff Attorney, Mid-Pacific Regional Office