STC’s Legal Victory for Sea Turtles

Issue 3, 2011 Article:

* Addressing Florida’s Beachfront Lighting Problem
* STC’s Legal Victory for Sea Turtles

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STC’s Legal Victory for Sea Turtles

By Marydele Donnelly

On July 5th, 2011, the U.S. District Court for the Northern District of Florida found in STC’s favor in a lawsuit the organization and its partners brought against the National Marine Fisheries Service (NMFS) for allowing the bottom longline fishery for reef fish in the Gulf of Mexico to injure and kill hundreds of loggerhead turtles each year. In finding for the plaintiffs in “Sea Turtle Conservancy et al. versus Locke” on two principal legal arguments, the court ruled that NMFS had violated the National Environmental Policy Act, the Administrative Procedure Act, and the Magnuson-Stevens Act in developing the current regulations that govern the fishery and its current management plan, known as Amendment 31.

This case is the culmination of three years of advocacy and legal action focused on protecting loggerheads from bottom longline fishing in the Gulf. Throughout this time, STC has worked closely with the excellent attorneys from the Center for Biological Diversity, Defenders of Wildlife and Earthjustice. The federal judge in the case requested additional briefings from the parties and will issue a decision on remedy in the near future.

Since August 2008, when NMFS released information confirming that the fishery had captured hundreds of sea turtles in the previous 18 months, far in excess of the number allowed (from July 2006 through December 2008, the final estimate was over 900 turtles killed—10 times more than authorized), STC has urged NMFS to address this problem. STC worked to resolve this issue first in meetings and ultimately through legal action. Under the Endangered Species Act (ESA), a fishery that captures, injures and kills endangered species such as sea turtles, is only authorized to fish after NMFS thoroughly reviews its environmental impacts in a Biological Opinion (BO) and authorizes a specific number of interactions that it deems can be allowed without jeopardizing the survival of the species. The BO may identify restrictions needed to protect the species, such as area closures or limitations on the type of gear or bait used.

In the fall of 2008, STC and other conservation groups met with NMFS officials and fishing industry representatives to discuss immediate reductions in sea turtle capture by bottom longliners. Each boat in this fishery deploys hundreds or even thousands of baited hooks on the Gulf floor to catch grouper, tilefish and other species. Unlike the longlines which are fished closer to the surface, which allow sea turtles to breathe, bottom longlines trap and often drown the turtles they capture on the bottom. Others that survive may subsequently die from hooking injuries or physiological problems created by forced submergence. When neither NMFS nor the industry acted to address this problem, STC sought legal counsel and asked NMFS to use its emergency authority to close the fishery until this problem could be resolved. After many weeks of inaction, on January 13, 2009, our lawyers sent a 60-day notice of our intent to sue for violations of the ESA, as required by the law. At the end of January the Gulf of Mexico Fishery Management Council requested that NMFS institute an emergency fishery closure.

NMFS did not act and thus STC and our partners sued the Service on April 15th. Several weeks later NMFS prohibited bottom longlining in water less than 50 fathoms (300 feet) deep for six months or until it completed a new BO. Florida is the only state bordering the Gulf of Mexico that allows bottom longline fishing in waters less than 50 fathoms. During the closure, bottom longliners could fish beyond 50 fathoms and fishermen using vertical longlines attached to buoys were allowed to fish within 50 fathoms. Contrary to dire predictions by bottom longline fishermen, grouper and other reef fish were readily available at good prices throughout Florida during the closure.

In October 2009, NMFS released the new BO for the reef fish fishery under Amendment 31 and allowed bottom longliners to return to shallower water to fish under a temporary ESA Rule until Amendment 31 could be adopted. The ESA Rule allowed year-round bottom longlining beyond 35 fathoms (210 feet) and restricted each boat to carrying 1,000 hooks, with 750 hooks rigged for fishing. Although STC and our partners supported the ESA Rule, we were alarmed by the jeopardy analysis in the new BO, which increased the number of authorized captures from 85 turtles in three years to 732, and prohibited bottom longlining within 35 fathoms only from June-August. Although scientists from the Florida Fish and Wildlife Conservation Commission and Mote Marine Laboratory in Florida sent their information about loggerhead habitat use to NMFS, the authors of the BO omitted critical, detailed scientific data about sea turtles inhabiting and moving through the fishing area throughout the year.

Shortly after Amendment 31 was published on May 26, 2010, STC and our partners challenged the new BO in a second lawsuit for failing to use the best available science, violating the law in the way the BO was developed, and failing to take into consideration the effects of the Deepwater Horizon oil spill. Nearly a year later the Court gave us a victory on the legal claims, as noted earlier, and ruled that under the ESA, NMFS must evaluate whether the fishery may have “different or more extensive” effects on sea turtles after the Gulf oil spill in a new BO. This is a very important finding. The numerous terms and conditions of the 2009 BO will remain in effect until the new one including the effects of the oil spill is in place.

Courts generally give deference to the government on scientific issues and in this case the Court deferred to the expertise of NMFS on certain scientific matters and upheld the 2009 BO with regard to the science it relied upon. Nevertheless, we remain convinced that the Fisheries Service did not use the best available science. The way in which NMFS has handled its information and made its case to the Court is also cause for concern. Until it filed its response in late August 2011 to the Court’s decision, NMFS had not made information on sea turtle capture in fishery from 2009-2011 available, although on numerous occasions both STC staff and our lawyers had requested it. NMFS filed so-called public records on capture with the court in August 2011, even though prior to the filing a thorough document search by our attorneys did not unearth this information.

Since this fishery has a history of poor observer coverage and has been the subject of litigation, NMFS should be doing a much better job of collecting information and making it available to the public. Because the current observer coverage is lower than required in the 2009 BO, confidence in the results are highly questionable. To be fair, the Deepwater Horizon oil spill in 2010 surely contributed to poor observer coverage. But in light of its recent behavior, it is also possible NMFS has purposefully failed to collect important data so if there were ongoing problems, the environmental community could not prove that the fishery is harming sea turtles and must be restricted.

As the Court acknowledged, the ESA obligates NMFS to ensure that the actions it authorizes are not likely to jeopardize sea turtles. Our attorneys have asked the Court to order NMFS to comply with its own requirements to collect and analyze turtle capture data by bottom longline fishermen each year; maintain a meaningful level of observer coverage; and retain jurisdiction to enforce these terms and conditions. The Court’s order on remedy will soon be available.