Facts

Stablefish is a bottom-dwelling species that is valued as a consumer delicacy. To harvest the fish, approximately 150 commercial fishing vessels deploy tens of thousands of pots that "sit on the bottom of the ocean and are connected to each other in approximately two-mile-long strings of 15 to 50 pots." Local populations of humpback whales, including Endangered Species Act (ESA)-listed endangered and threatened populations, can become entangled with the fishing gear used in the pot fishery, which has caused injury and on occasion death. On Janaury 9, 2022, Center for Biological Diversity brought a lawsuit against Gina Raimondo, in her official capacity as Secretary of the U.S. Department of Commerce, and the National Marine Fisheries Service (NMFS), alleging violations of the Marine Mammal Protection Act (MMPA) and ESA based on the issuance of a permit by NMFS in 2021 authorizing the incidental taking of ESA-listed humpback whales in the pot fishery.

PLAINTIFF'S CONTENTIONS: Plaintiff alleged that NMFS's MMPA permit authorizing the incidental take of humpback whales due to sablefish pot gear fishery operations was unlawful because they issued the permit without having developed or been in the process of developing a take reduction plan as required by law.

DEFENDANTS' CONTENTIONS: Defendants alleged that the NMFS simply lacked the funding to develop and implement the take reduction plans for all marine mammal species and stocks that were entitled to one, and consequently a statutory exception applied to relieve the agency of its obligation to develop a plan.

Result

The parties stipulated to an agreement in which the NMFS agreed to issue a notice establishing a take reduction team by October 31, 2025, with the first take reduction meeting taking place by November 30, 2025. The court agreed to remand the MMPA permit for the stablefish pot gear fishery to NMFS for further consideration without vacatur.