Federal Judge Advances Lawsuit Against California Gillnet Ban

CALIFORNIA一 On Feb. 1, U.S. District Judge Troy Nunley moved to advance a lawsuit against the state of California over the ban on gillnets.

In 2020, two California fishermen, Joseph Abad, and Austen Brown, filed a lawsuit against the state of California over the drift gillnet ban signed into law in 2018.

Gillnets are long walls of mesh that hang underwater and are meant to catch swordfish by the gills.

Weights and buoys are used to stretch the mile-long nets beneath the ocean’s surface and have openings large enough for swordfish to stick their heads through, allowing them to be caught by the “gills.”

Abad and Brown both hold federal permits allowing the use of gillnets for swordfish on the west coast but cannot in California due to the ban.

The lawsuit claims that because the permits were obtained on a federal level, the state cannot override the permit and encroach on their federal rights.

“The federal government under the Magnuson-Stevens Fisheries Conservation and Management Act has authorized this exact type of gear [for] this exact type of fishing,” said Brown’s attorney Glenn Roper of the Pacific Legal Foundation. “Our clients have the federal permits, and now the state is coming in and saying we are going to forbid you from using the federal permits and argue that it is preempted by federal law.”

In 2016, the Obama administration proposed a rule that would shut down the California Drift Gillnet Fishery for two years if marine mammals or turtles were harmed by the nets. The Trump administration withdrew the proposal in 2017 and created a permit program that would allow for gillnets.

The nets have been linked to the entanglement of marine mammals and sea turtles who get caught in the nets, which can cause them to drown. In addition, if a drift net is not anchored to the bottom, whales can often drag the nets, causing fatigue and an inability to feed properly, according to NOAA fisheries.

West Coast Drift Gillnet permits are commercial permits within the Exclusive Economic Zones in California and Oregon. Boats with the federal permit must also carry a Pacific Highly Migratory Species permit and a Marine Mammal Authorization Program certificate.

Roper said the federal permits have seasonal restrictions to increase the avoidance of migratory species and require acoustic ‘pingers’ to ward off cetaceans, like dolphins, who use echolocation, which has significantly reduced marine mammal bycatch.

Nunley denied the state’s motion to dismiss the case and moved it forward into the discovery phase, allowing both sides to begin putting together their case and conducting depositions.

The judge has ordered the state to file an answer to the complaint within 30 days of the order.

“So that is going to be the next thing that happens, and that’s where the state has to respond to every allegation that was made and either admit it or deny it and assert any defenses that they have,” said Roper.

Roper said this would clear up the areas of disagreement, and they can then enter the discovery phase.

Roper said he is hopeful for settlement discussions with the state to try to resolve the issue.

The California Department of Fish and Wildlife could not be reached for comment at this time.