Landmark Decision Reached; No to White Marlin ESA

With the recent compromise agreement and subsequent court approval, the case requesting the NMFS to list white marlin as endangered or threatened had been closed and the popular catch-and-release gamefish is not included in the ESA legislation.

An agreement has been reached between the organizations who sued the US Government to list the White Marlin as an Endangered Species and those who sought to protect the rights of fishermen to catch the trophy fish. The resulting agreement has been reviewed and approved by United States District Judge Richard W. Roberts.On October 19, 2005, Judge Roberts approved the settlement agreement in the White Marlin Endangered Species Act (ESA) case and ended nearly two years of litigation. The settlement does not order the National Marine Fisheries Service (NMFS) to list the white marlin as “threatened” or “endangered” as the plaintiff environmental groups were seeking.

“Every term of the settlement agreement, which was signed by most of the parties including the Recreational Fishing Alliance (RFA), is now an order of the federal court and the case has been dismissed,” said Raymond D. Bogan, RFA counsel.

The case began when the Center for Biological Diversity and the Turtle Island Restoration Network brought a lawsuit against NMFS in January 2004 seeking to force the agency to list the Atlantic white marlin as “threatened” or “endangered” under the ESA. The settlement staves off an ESA listing for white marlin in exchange for other conservation measures,

“The RFA entered the case as a Defendant-Intervenor to protect our members interests considering that under the language of the ESA, if white marlin are listed as ‘threatened’ or ‘endangered’ and ‘critical habitat’ is established for the species, NMFS would have the discretion to prohibit recreational fishing for white marlin by regulation- even catch and release,” said Herb Moore, Jr., RFA co-counsel. “That would be a disaster for us.”

White marlin being listed under the ESA could negatively affect fishing for non-ESA species in the same waters. If potential disturbance to white marlin were considered probable, entire areas could be closed to fishing for other species such as blue marlin, yellowfin, bluefin and bigeye tuna as well because they share the white marlin’s critical habitat.

The specifics of the settlement agreement are:
* I. Within 60 days of the International Commission for the Conservation of Atlantic Tuna’s adoption of a new white marlin stock assessment, NMFS will begin a new ESA status review of white marlin.
* II. Within 18 months of the start of the new status review, but no later than December 31, 2007, NMFS must make a new determination whether white marlin should be listed under the ESA.
* III. In preparing Amendment 2 to the Billfish Fisheries Management Plan (FMP) and Amendment 2 to the Highly Migratory Species FMP, NMFS must specifically take into account five suggested time/area closures to pelagic drift longlining.

In addition to the RFA, the settlement agreement was signed by the Plaintiffs, Defendant-NMFS, and Intervenor-Defendants American Sportfishing Association (ASA) and Coastal Conservation Association (CCA).

The Bluewater Fisherman’s Association which represents the pelagic drift longline fleet formally opposed the agreement.

The Billfish Foundation did not consent to the agreement and did not formally oppose it.

“With the conclusion of this lawsuit, the focus must shift to the NMFS rulemaking process currently under way to amend the Billfish and Highly Migratory Species fishery management plans,” said Jim Donofrio, RFA Executive Director. “We’ve got several concerns with the draft plan that must be addressed if we are going to avoid an ESA listing again in 2007”.

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