"Unfortunately, NMFS's endangerment of Hawai'i's treasured marine life is nothing new," stated Brendan Cummings, staff attorney for plaintiff Center for Biological Diversity. "NMFS's chronic failure to follow the law in regulating the Hawai'i-based longline fishery has resulted in the unnecessary deaths of many thousands of sea turtles, seabirds, and marine mammals."
Judge David Ezra closed the swordfish fishery in 2000 when NMFS failed to prepare a required Environmental Impact Statement. After finally reviewing the fishery's impacts, NMFS itself concluded it was unlawfully pushing endangered sea turtles towards extinction and in 2001 shut the swordfish fishery down, while allowing the tuna fishery to continue. In April of this year NMFS, under intense pressure from the longline industry, reopened the swordfish fishery.
Although NMFS will be requiring the longliners to use a different combination of hook and bait that it hopes will reduce deaths of sea turtles, NMFS's then-regional administrator Sam Pooley has been quoted as admitting that reopening the fishery is "the ultimate experiment."
Regardless of its hopes for the experimental gear's effectiveness, NMFS has authorized the swordfish fishery to capture 16 leatherback turtles and 17 loggerhead turtles every year, while at the same time acknowledging that leatherbacks, which have been swimming the oceans since the age of dinosaurs over 100 millions years ago, "have a very high risk of disappearing from the Pacific Ocean within one or two human generations."
Experts have been predicting for several years that the leatherback will soon go extinct in the Pacific as a direct result of fishing-related mortality, and nesting counts continue to plummet.
Before it was banned, the swordfish fishery was also responsible for the deaths of thousands of black-footed and Laysan albatross every year; the birds dive on the baited longline hooks (tens of millions of which are set annually by the Hawai'i-based fleet alone), are snagged and then drowned. Both species of seabird breed almost exclusively in the Northwestern Hawaiian Islands. The International Union for Conservation of Nature and Natural Resources last year reclassified the black-footed albatross from "Vulnerable" to "Endangered" due to longline impacts; scientists have recently predicted that the bird's population will drop by 50 to 90 percent over the next 57 years, due to longline fishing. Some 26 species of seabirds, including 17 species of albatross, are in danger of extinction due to longlining. Methods exist to reduce (but not eliminate) deaths of seabirds on longlines, but in reopening this fishery NMFS has not required the longliners to use the most effective ones.
Earthjustice attorney Paul Achitoff commented, "NMFS has failed, time and again, to responsibly manage this fishery in accordance with its legal obligations. Time and again, NMFS has turned its back on protected species, the health of the oceans, and our legacy to future generations, and instead kowtows to the longline industry's demands for more fishing at any cost. We will not stand by and watch."
The MBTA, one of the nation's oldest conservation laws, strictly prohibits capturing or killing migratory birds such as albatross "by any means or in any manner" without permission from the U.S. Fish and Wildlife Service ("FWS"). FWS has not authorized the deaths of any black-footed or Laysan albatross by the longliners. Also, although NMFS approved an Environmental Impact Statement before reopening the fishery, the statement omitted any meaningful discussion of the fishery's impacts on seabirds, in violation of NEPA.
Todd Steiner, director of plaintiff Turtle Island Restoration Network, commented, "The government is running blind when it comes to opening this fishery. Blind to rules and regulations. Blind to the potential extinction of seabirds and sea turtles. And unless we truly and fairly examine the impact of the longline fishery, the only thing we will be seeing are empty oceans."
Albatross play an important role not only in marine biodiversity, but Hawaiian culture as well. Ka `Iwa Kua Lele member William Aila noted that "the albatross, or ka`upu, is a physical manifestation of Lono (one of the four principal Hawaiian deities). Its return to land-fall during the month of November is a ho`ailona, or sign, of Lono's promise to return each year. The ka`upu symbolizes the presence of Lono in the Makahiki celebration, and loss of this kino lau, or form, of Lono will jeopardize the continued practice of Makahiki. These creatures must be preserved."
The plaintiffs have filed a motion for a preliminary injunction, asking the court keep the swordfish fishery closed until NMFS complies with the environmental laws.