Suit against longlining filed too late, court rules
An environmental group waited too long to seek a ban on fishermen who sometimes catch birds and turtles in lines intended for swordfish, a federal appeals court said yesterday in dismissing the case.
Upholding a lower court's ruling, three judges with the 9th U.S Circuit Court of Appeals found that Earthjustice missed a 30-day deadline to challenge the National Marine Fisheries Service for reopening commercial longlines fishing for swordfish from Hawaii.
Longlines, which can extend for 60 miles and drag thousands of hooks, were banned in 2002 because endangered sea turtles were being caught.
But the fisheries service lifted the restriction in 2004 after tests showed "circle" hooks and new measures greatly reduced accidents. In the same year, longline fishing was banned off the U.S. West Coast.
Earthjustice attorney Paul Achitoff, who brought the suit in U.S. District Court on behalf of three environmental groups, said his clients likely would follow with a new complaint.
"They didn't address the merits of the claim at all," he said. "All they said was, 'Sorry, we can't hear this because it's too late.'"
Achitoff argues that, even with the new hooks, thousands of black-footed albatross, laysan albatross and endangered sea turtles continue to drown each year as a result of the longline fishing.
Michael Tosatto, deputy regional administrator for the fisheries service, said all nine leatherback turtles and 11 loggerheads injured in hooks last year were released back into the ocean, based on reports from private observers.
There are 112 fishing permits in Hawaii. Observers travel inside all swordfishing boats that operate out of Hawaii and in 20 percent of tuna boats, Tosatto said.
Under new rules, if a total of 16 leatherback turtles or 17 loggerhead turtles are hooked, swordfishing will be closed for the remainder of the year. Before the court-ordered ban, 112 leatherback turtles and 418 loggerhead turtles were accidentally caught between 1994 and 1999.
Catches of seabirds have also gone down, Tosatto said, with 77 hooked last year, of which 41 died. There's no cap on how many birds can be killed, but Tosatto said the fishery could be closed if just one of the rare short-tailed albatross is killed.
Tosatto said fishermen used to catch as many as 1,200 seabirds each year before guidelines were introduced. The birds often dive for the bait and hooks used to catch the swordfish.
To prevent that from happening, he said fishermen have been working at night when birds can't see the bait and using spiral hooks that can be twisted out more easily. The service also limited fishing last year to half of what it allowed in 2000, when 6 million pounds of swordfish were caught off Hawaii.
"We remain under our turtle cap ... and had a corresponding reduction in the amount of seabirds taken," Tosatto said. "This is a new fishery. This isn't the same old fishery."
The lawsuit contends the service violated the Migratory Bird Treaty Act, the Endangered Species Act and the National Environmental Policy Act when it brought longlines back.
However, in the decision by the San Francisco-based court, Judge M. Margaret McKeown wrote that the complaint wasn't valid because it was filed about four months late.
Tosatto would not comment on the charges of the suit because it had been dismissed.