Dolphin Protection Group's Opposition to NMFS Comparability Analysis Misplaced, US, New Zealand Claim
Responding to the environmental group Maui and Hector’s Dolphin Defenders NZ (see 2504280061, the New Zealand government and the United States each said that the environmental group was “fundamentally misunderstand[ing]” how the National Marine Fisheries Service conducts comparability analyses and was wrongly pointing to a typographical error to support its conclusion as to the remaining population of endangered Maui dolphins (Maui and Hector's Dolphin Defenders NZ v. National Marine Fisheries Service, CIT # 24-00218).
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New Zealand's protection of endangered species is just as good as, if not better than, that of the U.S., they said.
One of the environmental group’s arguments was that the comparability finding relied on an outdated 2021 estimate that 54 Maui dolphins remain, even though it itself at one point even cited a lower number, 43.
But the two governments called use of that lower number “plainly a typographical error.” Overall, the NMFS relied -- reasonably -- on a 2021 study that put the number of remaining dolphins at 54 instead of using a workshop’s 2023 estimate, based on that study, that estimated that population to be 48, they said. That workshop was held in advance of a meeting of the International Whaling Commission’s Scientific Committee and itself “did not fully endorse” the estimate, they said.
Maui and Hector’s Dolphin Defenders also “repeatedly argues” in its motion for judgment that the relevant New Zealand fisheries can’t be found to be comparable to U.S. fisheries because they don’t meet National Marine Fisheries Service standards, the government said. But the proper analyses doesn’t compare national standards -- only their overall effectiveness, DOJ argued.
Both parties said the New Zealand government’s own regulations were just as effective as the U.S.’s zero mortality goal; New Zealand also said they were comparable.
For example, New Zealand claimed that it doesn’t have a single “zero comparability” goal, but that it has implicitly adopted the standard across a couple of laws and an executive directive. It also noted that the U.S. fisheries service has never punished a fishery for failing to meet the zero mortality goal. On the other hand, there have been no reported Maui dolphin deaths or serious injuries since 2002, it claimed.
As another example, they also said the effectiveness of the U.S. “negligible impact” standard was equatable to New Zealand’s regulatory scheme. New Zealand may not offer “affirmative permits” governing the amount of incidental take fisheries are allowed, like the U.S. does, but it takes other steps, DOJ said. New Zealand said it doesn’t allow any bycatch at all; it can’t, because a single Maui dolphin bycatch would “automatically cause the negligible impact standard to be exceeded.”
“It is literally impossible to administer a negligble impact bycatch rate that is less than one individual dolphin,” it said.
As a result, it instead has established other rules that govern when a Maui dolphin is injured or killed, it said.
And both governments defended New Zealand’s use of electronic monitoring instead of human observers to enforce its regulations. Its monitoring is actually better than the United States’ own, achieving “90% monitoring coverage” as opposed to the 10% the U.S. posts. Unlike the U.S. system, New Zealand’s system reports the location of fishing vessels in real time and it “used an expanded EM program consisting of cameras on boats which is ‘capable of observing marine mammal bycatch 100% of the time’ within the Maui dolphin habitat zone,” the U.S. said.