Judge James C. Dever has dismissed a lawsuit by the N.C. Fisheries Association (NCFA) and Carteret County Fisherman's Association (CCFA) to challenge how gill-net fishing is regulated in areas where sea turtles are present.
The NCFA and CCFA demanded in the suit, filed on March 6 in federal court in Raleigh, that Incidental Take Permits for sea turtles be removed or all recreational fishing closed while management plans are developed and applied to recreational, hook-and-line fishermen.
Named as defendants of the suit for the U.S. Department of Commerce, U.S. Department of the Interior, the National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service, the N.C. Department of Environmental and Natural Resources, the N.C. Division of Marine Fisheries and the N.C. Wildlife Resources Commission.
In dismissing the complaint that was brought by the NCFA and CCFA on behalf of all commercial fishermen in the state, Dever, the chief judge for the Eastern District of North Carolina, said in a 19-page dismissal order, the plaintiffs lacked jurisdiction to sue various state and federal agencies.
Dever's dismissal order was 19 pages long. In it he stated, “Plaintiffs allege merely that NCFA and CCFA and its members have suffered injury to their economic and environmental interests, which are uniquely entwined with endangered and threatened sea turtles. The federal defendants argue that plaintiffs have not adequately alleged any valid injury-in-fact. Plaintiffs' conclusory allegation that they have suffered economic and environmental harm does not suffice. Plaintiffs have not plausibly alleged either an economic or environmental injury sufficient to establishing standing in their own right."
Dever also noted that nothing suggests that if sea turtle taking regulations were enforced on the recreational hook-and-line fishery, there would be a lessening of the commercial fishing industry's regulatory burdens and compliance costs.
Dever's conclusion states, “The plaintiffs have failed to plausibly allege that the federal defendants are causing sea-turtle takings to be committed. Thus, the court grants the motions (from both federal and state defendants) to dismiss for lack of subject-matter jurisdiction."
At the heart of this matter is that sea turtles are federally protected by the Endangered Species Act. An Incidental Take Permit (ITP) was issued to NCDMF to allow gill netters to continue working. The ITP allows a limited number of takes of the turtles, which are protected by the ESA, when participating in an otherwise lawful activity. Provisions of the ITP limit fishing hours and equipment in areas known to have numerous interactions with the protected turtles. There are season closures in some areas to prevent turtle interaction and in some areas because the number of allowed annual takes has been reached.
The complaint alleged that defendants had long realized the recreational hook-and-line fishery has been in violation of the ESA in regards to illegal takes of endangered and protected sea turtles, but has not taken any action to prevent them. The complaint states that commercial fishermen in the shrimping, large-mesh gill net and long-line fisheries have been, and are, required to adhere to a number of measures in efforts to protect those same sea turtles. The proposed solution was that all Incidental Take Permits regarding sea turtles be abandoned or all coastal recreational fishing be shut down until a similar plan could be applied to hook-and-line anglers.
Greg Hurt, chairman of the North Carolina Coastal Conservation Association, was pleased with the judge’s decision to dismiss the suit without going to trial.
“While CCA was not a party to the lawsuit, we do represent thousands of recreational fishermen who could have been adversely affected had this specious suit gone forward,” he said. “One of our primary goals is to protect the rights of the men, women and kids who recreationally fish. This clearly unmerited claim would have severely impacted that goal. Unfortunately, I don’t think a significant number of North Carolina citizens realized what the NCFA was attempting to do. Businesses that provide goods and services to recreational fishermen would have been devastated if the suit had halted all hook-and-line angling."
Jerry Schill, the president of NCFA, said, "We were very disappointed to hear of the judge's decision to dismiss our suit about the Endangered Species Act. We have had some conversations with our attorney but need a comprehensive discussion to make a decision on any future action, if any.”