Think Out Loud

Court rules National Marine Fisheries Service must protect Humpback whales

By Sage Van Wing (OPB)
March 21, 2023 4:20 p.m.

Broadcast: Tuesday, Mar. 21

A humpback whale calf off the Atlantic coast.

A humpback whale calf off the Atlantic coast.

Florian Graner


Last week a federal judge ruled that the National Marine Fisheries Service can no longer continue to issue permits for the incidental take of humpback whales when they get tangled in sablefish pot gear off the West coast. The lawsuit was filed by the nonprofit Center for Biological Diversity. Kristen Monsell, the oceans legal director at the center, joins us to discuss what the ruling means.

The following transcript was created by a computer and edited by a volunteer:

Dave MillerFrom the Gert Boyle studio at OPB, this is Think Out Loud. I’m Dave Miller. Last week, a federal judge ruled against the National Marine Fisheries Service in a case about endangered Pacific humpback whales. He said the federal agency can no longer issue permits to commercial sable fish fishermen without first creating a plan to prevent the injury or death of these protected marine mammals. The lawsuit was filed by the non-profit Center for Biological Diversity. Kristen Monsell is the oceans legal director at the Center. She joins us to discuss what this ruling means. Kristin Monsell, welcome to the show.

Kristen Monsell:  Thank you. Happy to be here.

MillerYou sued under the Marine Mammal Protection Act. What does this law require?

Monsell:  The Marine Mammal Protection Act is a great statute that was enacted in recognition of the great international significance of marine mammals and the numerous benefits that they provide to all of us. And it seeks to protect and recover imperiled marine mammal populations. And it does so by generally prohibiting harming marine mammals except under specific circumstances. One of those circumstances is that commercial fisheries that occasionally or frequently kill or seriously injure endangered marine mammals, incidental to their fishing activities, can be permitted to take those marine mammals if certain standards are met, including that they will have only a negligible impact on the species or population. And that there is a plan in place to reduce the harm that those takes will cause to the population.

MillerSo this is called “incidental catch.” And then as you know, there has to be a permit for incidental catch. Can there be any injury or harm to these protected mammals without necessitating an incidental catch permit? Can you hurt one whale by mistake or kill one whale by mistake as you’re fishing or is even one too much?

Monsell:  Even one is unlawful and even one is one too many, just generally. I mean, these entanglements are incredibly painful and deadly to these whales. It’s really horrible. They get tangled up in this heavy gear that can drown them, cut off their tails or flippers, prevent them from eating, causing them to slowly starve to death over time. They can also die of exhaustion, dragging gear hundreds of miles on migrations. It’s just incredibly devastating to think about the suffering that these individual animals are forced to endure because of entanglements. But it’s also a conservation problem as well. Because we’re talking about endangered marine mammals that are still in trouble and haven’t recovered because of what humans are doing to them.

MillerWhat are examples of take reduction plans that could be required of various fisheries?

Monsell:  So there are numerous things that the agencies could do to develop measures to reduce the risk of entanglement via these take reduction plans. Timed area closures is a common regulation that becomes part of these take reduction plans. So in an area where you will have humpback whales or another species overlapping with lots of fishing gear, that area would then be closed. Because that is just a recipe for an entanglement disaster. We shouldn’t be forcing whales to run a gauntlet of dangerous deadly lines off our coast. So if you get the line out of important habitat areas, when the whales are most likely to be there, that will help significantly reduce the risk of entanglement.

Another measure is the use of rope lifts or on-demand gear, which is a newer type of gear that, instead of having a vertical line that runs from a trap on the seafloor to a buoy on the surface, that rope is coiled on top of the trap on the seafloor. When a fisherman wants to retrieve their gear, they go out and press a button and the buoy and rope rise to the surface and they can retrieve their gear as usual.

MillerAnd so, remote control release and then it just pops up?

Monsell:  Correct. And there’s a couple different variations of the gear. But the basic idea is that it removes that static vertical buoy line that the whales get entangled in. And if you remove that line, you remove the risk of entanglement while also allowing fishing to continue. The gear hasn’t been widely adopted yet because it’s still much more expensive than a traditional setup. But it’s one thing that we’re really pushing the federal government to widely adopt. And they themselves have said it’s the future solution to the whale entanglement problem. But that future needs to happen now. I mean, we recognize change is hard, but that doesn’t mean change shouldn’t happen. We shouldn’t be entangling these whales, not when there is technology out there that can prevent it.


MillerSo this gets us directly to the issue at hand. We started with the background of this law and what it’s intended to do and how it’s supposed to work. Why did you bring suit against the National Marine Fisheries Service? What was the allegation of how they weren’t following federal law?

Monsell:  Generally, the lawsuit alleged that the Fishery Service was failing to protect endangered Pacific humpback whales from deadly entanglements in sablefish [long line] gear off California, Oregon and Washington. More specifically, the case challenged an agency permit that allowed the fishery to entangle and kill endangered humpback whales without any measures in place to reduce those harms or a clear plan to implement protections in the near future. And the court agreed with us. The judge found that the Agency’s permit violated the plain language of the Marine Mammal Protection Act because they had no plan in place to reduce risks. And [they] said that the Agency can’t indefinitely delay developing a take reduction plan while continuing to authorize permits for the incidental take of endangered and threatened humpback whales.

MillerAnd I should say that the Agency’s argument was, and correct me if I’m wrong about this, that they weren’t required to come up with a take reduction plan for this fishery because of funding problems. They didn’t have enough money to actually make that happen. But they also said that they satisfied the plan requirement because putting a plan together was on a quote “priority list for development.” In other words, they had plans to make a plan and that was enough. How did the judge respond to these specific arguments?

Monsell:  The judge rejected those arguments and said that we had the better argument. A plan to make a plan at some point in the future wasn’t sufficient, particularly when the agency had said developing a plan here, for this particular fishery, was a low priority. So the agency can’t authorize a fishery to kill endangered marine mammals without at least some indication [that] measures are coming down the pipe relatively soon. I mean, the Marine Mammal Protection Act is very specific when it comes to developing a take reduction plan. Not only with respect to what measures must be in that plan and what levels of mortality need to be reduced by, but also the timelines by which the plan needs to meet those goals and when the agency needs to issue regulations. And that specificity coupled with the overall goal of the Marine Mammal Protection Act, which is to protect marine mammals and encourage them to develop as much as possible, led the court to reject the agency’s arguments as antithetical to the process that the agency set up and the overall goals of the statute.

MillerYou noted that the incidental take - we should use plain language here - that the killing of even one of these mammals is terrible conservation-wise and also goes against existing federal law. Do you have a sense for the effects of this one particular fishery that the sablefish fishery has on humpback populations on the Pacific coast? Is it even possible to quantify that?

Monsell:  Well the agency has estimated that, on average, the fishery kills about one humpback whale per year. But on average, about 25 humpback whales are entangled annually off the west coast and more than half those entanglements aren’t traced to a specific fishery. So it’s very likely that this particular fishery is causing even more harm than just the numbers themselves show. I mean, we don’t see the vast majority of entanglements that are occurring because the whales swim off with the gear to die elsewhere.

And when you’re talking about an endangered population and a population that hasn’t yet recovered, precisely because of entanglement in fishing gear and other human-caused threats, it’s even more of a concern. And these entanglements are impeding their recovery and very well may be pushing them to the brink of extinction. And we need to be doing everything we can to help save these animals to ensure that they’re here for future generations. I mean, whales in particular, not only are they amazing creatures in their own right, but [they] provide a whole host of ecosystem services that benefit us all.

MillerThe judge wrote that he defers consideration of the appropriate remedy until future proceedings that I think are going to happen next month. What are you going to be asking for?

Monsell:  That’s correct. We’re going to be back in court next month to discuss what happens next. But I think it’s only natural, based on the judge’s ruling, that what happens next has to be that the agency issues measures to protect these whales from getting tangled up in fishing gear. We need changes as soon as possible to help these whales.

MillerYou talked about different ways that that might happen, earlier, including different timing or places of where the fishing pods are gonna go or, or different actual technology instead of having these long mile or two-long lines connected to the pods that there would be no line. They would just have coiled line at the bottom that would pop up when the fishermen are ready to see what they’ve actually caught. Do you have a sense for what that would mean financially for this fishery, how much fishermen would have to pay to swap out all that gear?

Monsell:  That the cost of switching to on-demand gear would be significant. But the federal government subsidizes fisheries all the time and can and should do so here. And we’re pushing, not only the agency to do it through a regulatory process, but also pushing Congress to provide more funding for the development of this type of gear. We’ve seen a huge uptick in entanglements off the west coast and off other coasts as well. And scientists are linking that increase to climate change and just how warming waters are wreaking havoc on the ocean. And so you’re getting overlaps between whales and gear in ways that we haven’t seen before. And sadly, climate change isn’t going away anytime soon so all the more reason why we should be shifting to this type of gear. It doesn’t really matter where the whales go. If there’s no line in their habitat, the fishermen can continue to fish and the whales can continue to swim and breed and feed freely without the risk of these deadly entanglements.

MillerOn NOAA’s website, it says that the sablefish fishery normally runs from around March 1st to November 15th, subject to change each year. I mean, obviously we’re past March 1st right now. So what does this mean immediately in terms of sablefish fisheries right now?

Monsell:  It means the fishery is operating unlawfully right now. And while there’s a certain season in which the fishery operates with the most effort, the most parts, it does operate all year round. So there are humpbacks at risk all year round because they’re off our coast all year round. And we’re hoping that the agency acts immediately to do something. But we still haven’t heard from them since the judge’s decision. And as you noted, the judge didn’t order anything immediately. So it remains to be seen what will actually happen on the water. But, we’re hopeful that this will lead to more protections that these animals need and deserve and that the law demands.

MillerKristen Monsell, thanks very much.

Monsell:  Thank you.

Miller:  Kristen Monsell is the oceans legal director at the Center for Biological Diversity. The nonprofit brought suit against the National Marine Fisheries Service. And last week, a federal judge in California agreed saying that that federal agency can no longer issue permits to commercial sable fishermen without first creating a plan to prevent the incidental take of endangered humpback whales.

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