Each year, the Hawaii-based longline fleet hooks and entangles false killer whales, Pseudorca crassidens, resulting in serious injury or death through drowning.
The dwindling population currently numbers only about 500 animals in Hawaiian waters.
The lawsuit points out that the Fisheries Service's own studies show that, for nearly a decade, the Hawaii longline fishery has been killing the whales at rates far beyond what the population can sustain.
Challenging the agency's failure to devise a plan to protect the whales are three conservation groups - Hui Malama i Kohola, the Center for Biological Diversity, and Turtle Island Restoration Network.
"The Hawaiian values of malama (to care for) and kuleana (to be responsible for) mean that we all have to take part in protecting Hawaii's false killer whales from needless deaths in the longline fishery's gear," explained William Aila of Hui Malama i Kohola.
"In 1994, Congress amended the Marine Mammal Protection Act to require the Fisheries Service to try to eliminate marine mammal death and serious injury in commercial fisheries," said David Henkin, an attorney with Earthjustice who is representing the coalition in court.
False killer whales (Photo by Gerald and Buff Corsi courtesy California Academy of Sciences)
"For years, the agency has ignored its legal duty to develop a plan to reduce the longline fishery's deadly interactions with false killer whales and other marine mammals," Henkin said. "Hawaii's marine mammals are paying with their lives for the Fisheries Service's refusal to comply with the law."
On August 10, 2004, under pressure from a lawsuit brought by the same three conservation groups, the National Marine Fisheries Service reclassified the Hawaii-based longline fishery as "Category I" due to its excessive incidental take of Hawaii's false killer whales.
This reclassification officially triggered the Marine Mammal Protection Act's requirement to establish a "take reduction team" to devise a plan to bring the fishery's incidental take "to insignificant levels approaching a zero mortality and serious injury rate," Henkin explains.
Instead, the conservationists argue, for more than four years, the Fisheries Service has done nothing, claiming inadequate funding, while refusing to ask Congress for additional money.
"The National Marine Fisheries Service has ignored our pleas to address the slaughter of false killer whales, claiming inadequate funds, but it's never bothered to ask Congress to appropriate the money needed to get the job done," said Andrea Treece, a senior attorney for the Center for Biological Diversity.
A December 2008 study by the Government Accountability Office, the investigative branch of Congress, found that "the false killer whale is the only marine mammal for which incidental take by commercial fisheries is above its maximum removal level that is not covered by a take reduction team."
As its name implies, the false killer whale shares characteristics with the more widely known orca, often called "killer whale". The two species look similar and, like the orca, the false killer whale attacks and kills other cetaceans. However, the two dolphin species are not closely related.
The IUCN Red List of Threatened Species classifies false killer whales as Data Deficient, saying global trend or abundance data for this species are unavailable.
Threats that could cause widespread declines include high levels of anthropogenic sound, especially military sonar and seismic surveys, and bycatch, the unintentional capture of the whales by fishing fleets.
"Bycatch is particularly worrisome because of known unsustainable levels where fisheries are monitored in Hawaii and the presence of similar fisheries throughout the range of the species," says the IUCN.
"The combination of possible declines driven by vulnerability to high-level anthropogenic sound sources and bycatch is believed sufficient that a 30 percent global reduction over three generations cannot be ruled out," the IUCN warns.
"Longlines attempting to catch tuna and swordfish indiscriminately kill whales, dolphins, and sea turtles. For far too long, the Bush administration ignored its obligation to save Hawaii's false killer whales," said biologist Todd Steiner, who serves as executive director of Turtle Island Restoration Network. "We call on the Obama administration to end this slaughter quickly, before it's too late."
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