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We’re Showing Sharks Some Legal Love

July 26, 2022
By
Andrea Treece Senior Attorney
Natalie Barefoot Senior Attorney

As part of our work to preserve biodiversity, Earthjustice has mounted a series of legal challenges to protect vulnerable shark species from industrial fishing.

Every summer when people start heading to the beach, we hear news about shark sightings. Shark encounters get everyone’s attention – and not always for the reasons they should.

Beyond their sensational reputation as top predators, sharks are canaries in the coal mine. Healthy shark populations are key to biodiversity in the marine ecosystems we all depend on. In targeting the problem of declining biodiversity, Earthjustice’s Oceans team has been focusing legal and policy work on protecting sharks.

Most people don’t realize that there are more than 450 species of sharks cruising the world’s oceans, and some are worldwide ambassadors that migrate vast distances. The variety of shark species is mind-boggling. Intriguing tasselled wobbegongs are “carpet sharks” that hug the ocean floor and blend into reefs. Whale sharks  are the world’s biggest fish (some the size of a school bus) and may swim across entire oceans to feed on massive blooms of tiny plankton and fish eggs. The goblin shark is a quirky species which prowls dark waters nearly a mile below the ocean surface. 

Sharks’ vital role in the spiritual lives of many communities pre-dates their role as fascinating subjects of scientific inquiry. For example, some Native Hawaiians have a special relationship with the shark (manō) as a family ‘aumakua—a diefied ancestor that protects and warns against danger. Native Hawaiian cultural practitioners may honor their ‘aumakua by acting as shark guardians (kahu manō) and defending these sacred animals from death due to inhumane fishing practices.

For sharks, the biggest threat isn’t great white shark hunters like Captain Quint of Jaws – it is daily overfishing. As the New York Times reports, “In just the last half-century, humans have caused a staggering, worldwide drop in the number of sharks and rays that swim the open oceans, scientists have found in the first global assessment of its kind, published in the journal Nature. Oceanic sharks and rays have declined by 71 percent since 1970, mainly because of overfishing.”

Industrial fishing can be a death sentence for sharks  – even when they aren’t the target. Sharks and other creatures are killed unintentionally as “bycatch” by longline fishing fleets that target other species, including tuna and swordfish. The boats drag hook-filled lines stretching as long as 50 miles. Once caught, a shark may struggle for hours and die. Even if it is hauled up to the boat and released alive, it may die later from stress, infection, or injury. Many other protected species end up as bycatch on these longlines, including giant manta rays, sea turtles, sea birds, and marine mammals.

As part of our work to preserve biodiversity, Earthjustice has mounted a series of legal challenges to protect vulnerable shark species:  

Oceanic whitetips - These once-abundant sharks were listed as threatened under the Endangered Species Act back in 2018, but it has taken a series of legal actions over four years to get regulators to do what it takes to protect a species that’s teetering toward extinction.

First, Earthjustice reached a 2020 settlement with the National Marine Fisheries Service on behalf of the Conservation Council for Hawai‘i and Mike Nakachi, a native Hawaiian cultural practitioner. The National Marine Fisheries Service finally agreed to designate the population of oceanic whitetips to be “overfished,” a key move that triggers protective actions.

We built on that decision by advocating protective measures in U.S. fisheries -- and also pushing the Fisheries Service to promote these measures in other countries that have major longline fishing fleets. So far, the Fisheries Service has adopted one key policy in the U.S. — requiring fleets to switch to a kind of fishing line that hooked sharks can more easily bite through and break free. This change in fishing gear increases the chance that sharks will survive being hooked, though they can still suffer injuries from hooks embedded their jaws.  The U.S. is also advocating for this change internationally. We need even more measures to prevent sharks from being snagged in the first place, and we are working to get policies in place.  

Second, Earthjustice filed suit in May 2022 against the National Marine Fisheries Service because the agency is allowing multiple longline fisheries in the Central and Western Pacific to catch, injure, and kill oceanic whitetips without first making sure that fishing impacts aren’t impairing the species’ ability to survive or preventing it from recovering to healthy levels. The Endangered Species Act requires the Fisheries Service to complete scientific studies before it allows fishing that could harm these sharks.

Worse yet, the agency hasn’t even set limits on the number of oceanic whitetips these longline fisheries can catch, wound, and kill, even though unlimited bycatch is one of the driving factors that led the Fisheries Service to list sharks as a threatened under the Endangered Species Act. The Fisheries Service estimates that several thousand oceanic whitetips are caught each year in the Hawai‘i longline fisheries, American Samoa longline fishery, and U.S. tuna purse seine fishery. Sadly, overfishing caused the population in the Pacific to plummet by 80-95% since the 1990s.  Our clients in this case are the Conservation Council for Hawai‘i and native Hawaiian cultural practitioner Nakachi.

Illegal fishing and bycatch – Since sharks roam widely, our work can’t be confined by country borders. We know that widespread illegal fishing practices and unfettered bycatch are destroying ocean biodiversity, but it’s not an easy thing to measure and regulate globally. But there is one indicator we’re focused on in the regulatory arena — a key report on international fisheries management that the Fisheries Service provides to the U.S. Congress every two years.

In that report, the Fisheries Service identifies countries where fleets use illegal or unregulated practices. It also flags countries that catch vulnerable marine species and don’t have regulations that are as protective as the ones in the U.S. Once a country is officially listed in the report, the Fisheries Service engages with that nation to fix the problems. If the nation won’t address the problems, the U.S. can “negatively certify” that country and impose various penalties, including trade sanctions. The Fisheries Service report is a tool to expose unsustainable fishing and hold nations and fishing vessels accountable.

Industrial fishing on the high seas is dominated by the world’s wealthier countries, since it’s expensive to operate so far out at sea. These remote industrial fleets end up killing important migratory species like sharks and rays, sea turtles and marine mammals. Illegal or unregulated fishing accounts for 15–30% of annual global catch. But in previous reports, the Fisheries Service identified only a handful of nations engaging in illegal and under-regulated fishing — a vast undercount.

In the 2021 report, we saw some improvement. The Fisheries Service updated its method of determining whether a nation gets listed. This time, 31 countries were listed for having problematic fishing practices – and that spurs engagement and action.

The next report on illegal and unregulated fishing will come in 2023, and Earthjustice plans to be involved. First, we’re hard at work tracking down evidence of nations catching sharks on the high seas without adequate regulations in place, and second, we’ll be demanding that the United States hold these bad actors accountable.  

An oceanic whitetip shark, Carcharhinus longimanus, swims in the waters off Hawaii.

An oceanic whitetip shark, Carcharhinus longimanus, swims in the waters off Hawaii.

Kaikea Nakachi