Week in Review

US lawsuit filed over Māui dolphins

A little dolphin is causing a big fuss for the fishing industry. Farah Hancock reports on how Māui dolphin are the subjects of a lawsuit in the United States that could impact $200 million of exports a year.

A US lawsuit could spur government action on an overdue plan to better protect Māui and Hector’s dolphins.

Environmental advocates have filed a lawsuit against four United States government organisations which rejected a petition calling for a ban on the import of New Zealand seafood.

The fishing industry said a ban could “render significant harm to the New Zealand economy” and called the lawsuit a “flawed attempt to close it down” . 

Sea Shepherd Legal and Earthrise Law Center filed the case on behalf of Sea Shepherd New Zealand and Sea Shepherd Conservation Society saying the US Department of Commerce, Department of Homeland Security, NOAA Fisheries, and the Treasury Department have failed to take legally mandated action to ban imports from the New Zealand fisheries where Māui dolphins are in danger of becoming bycatch. 

There are fewer than 65 Māui dolphins left in the world. A plan to protect Māui and Hector's dolphins was due to be released in December 2019, but has been delayed with no end date confirmed. Conservationists are hopeful the legal action will speed up the seemingly stalled plan.

The lawsuit hinges on part of the United States’ Marine Mammal Protection Act. This will ban the import of seafood from fisheries that don’t have rules preventing bycatch of marine mammals to a similar level to the United States. 

There’s a provision to bring a 2022 deadline forward in emergencies. This was used to ban some shrimp and fish from Mexico to protect the vaquita porpoise.

Sea Shepherd’s Michael Lawry said the act aimed at protecting US consumers.

“It’s a bit like palm oil and orangutans. You want to protect the consumer from unwittingly buying fish that’s contributing to the bycatch of an endangered species.”

Sea Shepherd Legal’s Brett Sommermeyer, who is based in the US, said it could be three to four months before the case is in front of the Court of International Trade.

How a little Kiwi dolphin ended up in a US lawsuit

Sea Shepherd New Zealand had initially submitted a petition calling for a US ban on snapper and seafood caught in Māui dolphin habitat in February of 2019. 

The potential impact on New Zealand’s exports would apply to $2 million of annual exports. However, unless a traceability programme was implemented to prove where in New Zealand fish was caught, the impact could have been $200 million per year.

The risk of a ban saw the matter raised to the Prime Minister’s office. Newsroom’s Sam Sachdeva reported on documents released under the Official Information Act showing the level of concern the ban generated.

Briefing documents say a ban would be “difficult and time consuming to reverse”.

“In particular, an import ban applied as a result of Sea Shepherd court action can be expected to apply for years rather than months.”

A video conference was held between New Zealand and US officials “where the urgency with which this was being treated within New Zealand was underlined”.

The day after a proposed plan was released in June 2019, Sea Shepherd’s petition was rejected by the NOAA. The reason given was New Zealand would be implementing a plan comparable to US standards.

It’s been almost a year since the proposed plan was released and public feedback sought. Submissions have long since closed, but no plan has been implemented. 

Seafood New Zealand's chief executive Jeremy Helson said he did not see the delay as problematic for Māui dolphins, saying based on science prepared by the Government, fishing would only kill one dolphin every nine years.

"The lawsuit filed by Sea Shepherd is premature and is a tactical move to both accelerate that process and panic the New Zealand Government to make changes under a pressured situation."

He said there are a number of measures already in place to protect the dolphins.

A controversial plan and a messy process

The proposal, which included four options for the public to submit to, was controversial, with scientists and economists questioning its contents.

The plan estimates toxoplasmosis is more lethal to Māui dolphins than fishing. An expert panel of scientists had warned the Government prior to the publication of the plan the scientific modelling to support this was questionable.

" ... we are concerned that the results from the model could be seriously misleading. For this reason, we recommend that you ‘back off’ from forcing the model to produce conclusions which are supportable only when a series of questionable assumptions are made and which even then, are highly uncertain."

The warning appears as a small footnote in the plan.

Economists questioned economic modelling saying financial losses in the plan are overestimated by 10 times. Following these questions an independent review by NZIER was commissioned by Fisheries NZ. This has not been made public. 

The day after submissions to government’s proposed plan were closed, fishing industry groups publicised what they labelled as option five. This option included a ‘move-on’ approach, where boats would stop fishing if they spotted a dolphin.

The “option five” move-on plan was in collaboration with WWF-New Zealand. 

The organisation receives $135,000 a year from Moana New Zealand, but CEO Livia Esterhazy said this is for work it does with the fishing company to improve sustainability and not related to the Māui and Hector’s dolphin plan.

“Option five” was shot down by most other conservation groups who were bewildered at the change of stance from WWF-NZ, who had previously called for a ban in Māui habitat. Greenpeace called it “the Sanford plan” and “ineffective”; World Animal Protection called it “unproven” and “reckless”.

Forest & Bird’s strategic advisor Geoff Keey pointed out it’s tricky to spot the dolphins, which are roughly the size of a nine-year-old child. He described the idea of only moving on if you saw a dolphin as being akin to a needle in a haystack. You might put your arm in a haystack several times and not get pricked, but that doesn’t mean it’s safe to assume there’s no needle there.

With the species “literally on its last legs – or last fins”, Keey said the gamble wasn't worth taking.

Now there's fear "option five" could be among what's being considered by officials.

Māui and Hector’s Dolphin Defenders NZ call the option “bluewashing”. 

“If the Government releases a decision that gives effect to the industry-WWF proposal, which hasn’t been consulted on, we believe the decision would be open to legal challenge, have no basis in science, and would continue to threaten both Māui and Hector’s with extinction,” said representative Genevieve Robinson.

Minister of Conservation Eugenie Sage said she was aware of the Sea Shepherd case, but as it's before the courts she could not comment on it.

"Minister of Fisheries Stuart Nash and I are actively working on finalising the updated Threat Management Plan for Māui and Hector’s dolphins and there will be announcements in due course."

She said Covid-19 had caused some delays to business going through cabinet committees.

Timeline:

February 6: Sea Shepherd petitions US National Oceanic and Atmospheric Administration to ban snapper and seafood caught in the area.

May 6: Briefing regarding the Sea Shepherd petition sent to Fisheries Minister Stuart Nash and Conservation Minister Eugenie Sage, Foreign Affairs Minister Winston Peters, Trade and Export Growth Minister David Parker, and Prime Minister Jacinda Ardern.

June 7: Government announces all commercial fishing boats at risk of encountering Māui dolphins would be required to have on-board cameras

June 17: A proposed Threat Management Plan is released.

June 18: US National Oceanic and Atmospheric Administration rejects Sea Shepherd’s petition for a ban.

June 18: Scientists question the proposal's claim cat faeces pose a bigger threat to dolphins than commercial fishing.

July 9: Questions raised over the calculation of economic impact of set-net and trawl bans in dolphin habitat.

August 19: Submissions to the threat management plan close.

August 20: Fishing interests Sanford and Moana New Zealand, with WWF-New Zealand, propose an “option five”. This suggests an observation and move-on approach if dolphins are seen.

September: Full page advertisements are published in the Dominion Post by Seafood NZ. Communications staff call these justified.

November 1: Deadline for boats fishing in Māui habitat to have on-board cameras. Fourteen of 20 boats intending to fish in the area had cameras.

November 11: The Department of Conservation releases information from acoustic monitoring which suggests dolphins are regularly present in the coastal waters of Tongaporutu, Taranaki, and visit as far south as Tapuae. It said it was determining whether further management options were needed as part of the review of the Hector’s and Māui dolphin Threat Management Plan.

Dec 19: Government announces delay to a decision on plan. No new deadline is given.

May 22 2020: Lawsuit filed in the United States.

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