On March 31, 2001, NMFS, as required by the Endangered Species Act, issued a biological opinion evaluating the longline fishery's impacts on protected species. The ESA requires that NMFS must establish that the fishery is "not likely to jeopardize the continued existence" of any threatened or endangered species. In making this determination, NMFS must include the impacts of other activities throughout the species' range that affect the species.
CMC and Turtle Island have long maintained that the longline fishery is jeopardizing the turtles' existence. In its new Biological Opinion, NMFS finally agreed, concluding that the Hawai'i longline fishery is "appreciably increasing the risk of extinction" of leatherback and green turtles. NMFS acknowledged that "leatherback populations have collapsed or have been declining at all major Pacific basin nesting beaches for the last two decades," and "leatherback turtles in the Pacific basin are a critically endangered species with a low probability of surviving and recovering in the wild." There are only a few thousand adult leatherbacks remaining in the Pacific. NMFS also admitted that it had until now substantially underestimated the number of leatherback deaths being caused by the Hawai'i longline fishery, and that even if this fishery were the only one killing leatherback turtles, "this impact alone could have serious consequences for the survival and recovery" of the Pacific leatherback. NMFS reached similar conclusions regarding the eastern Pacific population of the green sea turtle, which nests on Mexican beaches but is hooked by Hawai'i's longliners .
NMFS has placed some restrictions on the longline fishery. The Hawai'i Longline Association on April 10, 2001 filed suit against NMFS in Washington, D.C., arguing that the critically endangered turtles are not being jeopardized by the longline fishery and that such restrictions are unnecessary. Yet, although NMFS has stressed that these species are precariously poised on the brink of extinction and are besieged by fisheries around the Pacific, NMFS has again given the longline fishery permission to keep killing turtles. NMFS has not explained how the species can sustain the mortality from the Hawai'i longline fishery together with the impacts of other fisheries in the Pacific basin. This suit seeks to enforce the ESA's requirement that NMFS "ensure" that the actions it authorizes do not jeopardize endangered species, and asks NMFS to justify allowing continued slaughter of critically endangered turtles.
Earthjustice attorney Paul Achitoff commented: "We are watching these animals disappear from the Earth forever before our eyes. We cannot allow the government agency responsible for their recovery to turn its back and ignore the law."
Turtle Island Restoration Network and Center for Marine Conservation also brought the recent lawsuit before Judge David A. Ezra resulting in an injunction banning most swordfish longlining and adding observers to the tuna fleet pending preparation of an environmental impact statement. Although NMFS initially resisted the injunction, its new biological opinion admits that these measures are necessary.
In addition to bringing litigation to enforce the federal environmental laws, the plaintiff groups have been active in pursuing all available means to prevent the extinction of sea turtles. Turtle Island Restoration Network has sponsored turtle nesting beach protection programs in countries around the world, worked with progressive fishermen to develop turtle-safe shrimp fishing methods, and participated in monitoring of Costa Rican longliners. Center for Marine Conservation has been working to protect endangered sea turtles for 25 years. CMC research demonstrated that Pacific leatherback sea turtle populations were much fewer than NMFS initially estimated in its 1998 biological opinion. CMC led efforts to require the use of turtle excluder devices in shrimp fisheries along the East coast and Gulf of Mexico, and helped secure the adoption and US ratification of the Inter-American Convention for the Protection and Conservation of Sea Turtles. CMC has also promoted policies to protect sea turtles before the World Trade Organization and the Convention on International Trade in Endangered Species.
Todd Steiner of Turtle Island commented: "For 100 million years, the giant leatherback has managed to survive, outlasting the dinosaurs, yet today it is teetering on the verge of extinction. NMFS must do more to preserve our oceans' biodiversity than just study the problem and make small adjustments."
CMC's Tim Eichenberg said: "NMFS efforts are too little too late. The Center for Marine Conservation has been warning NMFS for more than seven years that Pacific leatherback sea turtles were on the brink of extinction. But now that drastic measure are needed, NMFS has once again failed to adequately ensure that the fisheries it regulates will not contribute to the imminent extinction of ancient species that have survived on earth for millions of years. More can and must be done to save sea turtles."