A San Francisco judge has rejected the California Department of Fish and Wildlife’s bid to delay a lawsuit that claims the agency has fallen short in preventing the state’s commercial Dungeness crab fishery from entangling whales and sea turtles.
U.S. District Court Judge Maxine Chesney, on Jan. 25, denied the department’s motion to delay the case by 2 1/2 years while it secures a federal “incidental take permit” that would allow the agency to operate in a way that addresses and minimizes the threat to whales and sea turtles, while acknowledging some risk.
The Center for Biological Diversity sued Fish and Wildlife in October 2017 after the total number of whale entanglements from all fishing industries broke records for three straight years.
“The Dungeness crab fishery is the biggest entanglement culprit in California, by far,” said Steve Jones, a spokesman for the center. “Most entangling gear can’t be identified, but of the identified gear, it is mostly crab lines.”
On Feb. 22, the court is expected to consider a motion to find Fish and Wildlife liable and require actions to prevent entanglements.
Center officials say the Dungeness crab fishing industry sets heavy traps at the bottom of the ocean with a single rope running through the water column and a buoy at or near the surface. Fishermen sometimes attach trailer buoys to the main buoy and whales get tangled up in the lines.
In some cases, slack lines act as a noose on whales and sea turtles.
Each entanglement of a humpback whale, blue whale or leatherback sea turtle violates the Endangered Species Act.
Kristen Monsell, an attorney for the Arizona-based environmental nonprofit center, called the Jan. 25 court ruling “an important win.”
“It’s time for California regulators to stop delaying and take action,” she said. “The court recognized that it can’t just sit on the sidelines while state officials have no plan to prevent entanglements. Talking and holding endless meetings isn’t enough.”
In 2017, the Dungeness crab fishery was valued at $47.05 million. Figures for 2018 have yet to be released.
“I’m confident the judge will assess the substance of the state’s case on its merits,” Noah Oppenheim, executive director of the Pacific Coast Federation of the Fishermen’s Association and Institute for Fisheries, said Friday, Feb. 1.
“We’ve put together the most progressive, collaborative, and effective entanglement response process of any fishery in the entire country,” he said. “It would be a huge disappointment for me and our colleagues if this litigation got in the way of the work we’re doing to protect marine mammals.”
Of the 31 entanglements reported by the National Oceanic and Atmospheric Administration in 2017, there were three confirmed entanglements involving California Dungeness crab fishing gear, Oppenheim said. That was down from 21 in 2016.
Data for 2018 is still being processed, he said, but it appears there was an uptick coast-wide.
At the time the Center for Biological Diversity filed the lawsuit, Oppenheim said, the Dungeness crab fishing industry had already made changes. Since then, he said, even more progress has been made.
Specifically, he pointed to efforts by the California Dungeness Crab Fishing Gear Working Group, which was founded in 2015 by Fish and Wildlife, in partnership with the California Ocean Protection Council and National Marine Fisheries Service, to address the increase in whale entanglements in crab fishing gear.
The group is made up of commercial and recreational fishermen, environmental organization representatives, members of the disentanglement network, and state and federal agencies.
“The working group is by far the most aggressive in minimizing impacts to marine mammals in the country,” Oppenheim said. “The process we’ve designed is far and away the most cutting edge and will do far more to improve conditions for whales than any other group.”
For instance, he said, the working group has developed a Risk Assessment and Mitigation Program, creating models and timelines to monitor risks to whales and sea turtles over time. As risks increase, the group will launch mitigation efforts.
The group also has developed fishing recommendations including improving buoy setup, reducing slacksurface line, and limiting the number of trailer buoys.
“Everyone wants a California Dungeness Crab Fishery,” Oppenheim said. “People want to get them and the crab fishery wants as close to zero impact on whales and sea turtles as possible.”
Legislation passed in 2018 now requires all fishing industries — including other types of crab, lobster and shrimp fisheries — to mark their gear, Oppenheim said.
Officials with the Center for Biological Diversity say these efforts are still insufficient.
“The judge’s decision should be a wake-up call to the department that it’s not doing nearly enough to prevent entanglements in crab gear,” Monsell said. “The time for talk is over. We need meaningful changes on the water now.”
