Swordfishing permit review ordered

Environmental groups that sued to protect migratory birds and endangered sea turtles are claiming victory in their challenge to the federal government’s authorization to expand the swordfish fishery for Hawaii-based longline fishing vessels.

Turtle Island Restoration Network and the Center for Biological Diversity sued in 2012 after the U.S. Fish and Wildlife Service granted the National Marine Fisheries Service a permit to allow commercial fishing vessels to set an unlimited number of longlines to catch swordfish. The permit set allowable limits for incidental catches of Laysan and black-footed albatrosses by the longline vessels but did not set limits for the number of incidental loggerhead and leatherback sea turtle catches.

U.S. District Judge Susan Oki Mollway upheld the unlimited catch in 2013 without a trial.

In a 2-1 split decision Wednesday, the 9th U.S. Circuit Court of Appeals ruled that Fish and Wildlife’s granting of the permit to the National Marine Fisheries Service was arbitrary and capricious. The panel also found arbitrary and capricious the NMFS’s opinion that increasing the number of longlines in the fishery would have no effect on loggerhead sea turtle populations.

In her dissenting opinion, Circuit Judge Consuelo Callahan said the FWS acted within its authority when it issued the permit to the National Marine Fisheries Service. Callahan said the issuing of the permit was not plainly erroneous or inconsistent with federal regulations and aligns with past practice.

The opinion of the majority sends the case back to Mollway to re-litigate the granting of the permit and the loggerhead sea turtle opinion but upheld the rest of Mollway’s 2013 ruling.

Paul Atchitoff of the Earthjustice Legal Defense Fund, which represents Turtle Island and the Center for Biological Diversity, said based on the majority opinion, he thinks the only thing Mollway can do is revoke the permit.