New Zealand Still Hasn't Shown Its Dolphin Protections Are US-Equivalent, Environmental Group Says
Opposing the United States’ and New Zealand's claims to the contrary (see 2506040068), environmental group Maui and Hector’s Dolphin Defenders NZ again said June 10 that New Zealand’s incidental bycatch regulations and its zero mortality rate goal for endangered Maui dolphins weren’t as strong as the U.S. regulations, rendering unsustainable a National Marine Fisheries Service comparability finding (Maui and Hector's Dolphin Defenders NZ v. National Marine Fisheries Service, CIT # 24-00218).
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Evidence submitted by government of New Zealand to the U.S. fisheries service shows that fisheries on the west coast of New Zealand’s North Island are accidentally catching Maui dolphins at a rate far greater than would be allowed in the U.S., the dolphin protection group claimed.
So, in this litigation, New Zealand and the U.S. are trying to support the NMFS comparability finding “largely by raising theoretical ways in which GNZ could address bycatch, without showing that GNZ must take or is taking such action,” it said.
New Zealand also argued in its opposition brief that no Maui dolphins have been killed or seriously injured in at least the past 13 years -- but this has already been discounted in previous litigation, Sea Shepherd I, in which CIT found New Zealand’s monitoring program wasn’t good enough to make such a claim, the group noted.
The case involves import controls imposed by the U.S. Marine Mammal Protection Act. Passed in 1972, the act requires that NMFS, every four years, compare the marine animal protection regulations of countries seeking to export fish and fish products to the United States with U.S. regulations.
The U.S. zero-mortality rate goal only takes effect if more than 10% of animals of an endangered species are seriously injured or killed by a particular fishery. If that happens, the fishery is classified as “Category II” and a team must be established to create a take reduction plan that will reduce the fishery’s endangered species mortality rate to zero within a few years.
The second important U.S. regulation, the “negligible impact” standard, applies more generally. It allows NMFS to authorize the incidental taking of an endangered marine mammal by a non-Category I or II commercial fishery only so long as that taking has a “negligible impact” on the mammal’s population. The standard quantifies acceptable takings in comparison with the maximum that can be taken without preventing the species from reaching or maintainng its optimal population size, known as the potential biological removal level -- for Maui dolphins, that number is 13% of its potential biological removal level, which equals “one dolphin every seventy-seven years.”
In response to the group’s April 25 motion for judgment (see 2504280061) the U.S. and New Zealand argued that the act doesn’t require NMFS to compare another country’s actual fishery regulations with the United States’. Rather, they claimed, it only instructs the fisheries service to compare the effectiveness of the two countries’ regulations.
But New Zealand’s regulations aren’t as effective as the United States’, Maui and Hector’s Dolphin Defenders said.
It said that the 2024 NMFS comparability finding never evaluated whether New Zealand has a zero mortality goal comparable to the U.S. version at all. Regardless, now the country could only point to general documents such as a memorandum and broad legislative provisions to make the claim that it has a similar zero mortality goal as the United States, only one of which actually provides any quantifiable guidance as to what triggers the goal, it said.
Further, even if New Zealand does have a zero mortality goal, neither the U.S. nor New Zealand has been able to demonstrate the goal has any teeth, the group said. This already has been pointed out in previous litigation, Sea Shepherd I, which found that nothing requires New Zealand “to do anything on any particular timeframe following a fishery-related interaction with a Maui dolphin,” it said.
Second, New Zealand couldn’t show that it had a negligible impact standard comparable to the U.S. version, the group said. The country argued, also post-hoc, that the standard doesn’t apply because New Zealand prohibits all incidental taking, but it reported otherwise in its comparability analysis application, Maui and Hector’s Dolphin Defenders said. New Zealand couldn’t cite any law forbidding incidental taking of Maui dolphins, it said.
And New Zealand’s claim that it rationally can’t “administer a negligible impact bycatch rate that is less than one individual dolphin” is equally flawed because it absolutely could, the group said -- just not on an annual basis. In other words, “once a dolphin is killed, an agency could not authorize fisheries to incidentally catch the dolphin for the next 76 years,” it said.
Finally, Maui and Hector’s Dolphin Defenders pushed back against NMFS’s calculation of Maui dolphins’ potential biological removal level. The agency claimed, based on a 2021 study, that 54 Maui dolphins still exist. But that study warned that its estimate was “likely biased upward,” and NMFS’s own guidelines require it to correct for biased estimates before using them, the group said. It claimed that NMFS didn’t do so in its comparability finding, while the group’s preferred estimate, which came from a 2023 report based on the 2021 study, did.