Lawsuit Launched Over U.S. Failure To Protect Shortfin Mako Sharks Under The Endangered Species Act

Defenders of Wildlife and the Center for Biological Diversity have sent a notice of their intent to sue the National Marine Fisheries Service for failing to protect the shortfin mako shark under the Endangered Species Act (ESA).

The law requires the Fisheries Service to determine if endangered species protection is warranted for the shortfin mako shark within 12 months of receiving a listing petition on which it has made a positive 90-day finding. Defenders of Wildlife filed the listing petition on January 25th, 2021.

The Service issued a positive 90-day finding that the short fin mako shark may be warranted for protection under the ESA on April 15th, 2021. A final determination was due no later than January 25th, 2022.

“The shortfin mako shark is the world’s fastest-swimming shark, but it can’t outrace the threat of extinction,” said Jane Davenport, a senior attorney at Defenders of Wildlife. “The government must follow the science and provide much-needed federal protections as quickly as possible. This will demonstrate America’s leadership in fisheries and ocean wildlife conservation both at home and on the world stage.”

The shortfin mako shark is a highly migratory species whose geographic range extends throughout the world’s tropical and temperate ocean waters. The species faces a barrage of threats, especially overfishing from targeted catch and bycatch. The shark’s highly valued fins and meat incentivize this overexploitation.

“The Fisheries Service failed to protect the shortfin mako despite an international scientific consensus that conservation action is urgently needed,” said Alex Olivera, the Center for Biological Diversity’s Mexico senior scientist. “Even as the rest of the world scrambles to save these sharks from extinction, they have no protections under the U.S. Endangered Species Act. That needs to change.”

Overfishing has resulted in steep population declines in the Atlantic Ocean and slightly more moderate declines in the North Pacific and Indian oceans. In the North Atlantic, scientists estimate that, even if fishing ceased today, it would take 50 years for the population to recover. The threat of overfishing is compounded by ocean pollution, climate change, and other risk factors driving the species towards extinction.

In 2019, the International Union for Conservation of Nature classified the shortfin mako as “endangered” on its Red List of Threatened Species. In 2021, the International Commission for the Conservation of Atlantic Tunas, an intergovernmental organization responsible for managing tuna populations, announced a two-year ban on retaining, shipping or landing North Atlantic shortfin mako sharks, preventing fishers from retaining and selling these sharks even when they are unintentionally caught.

As an apex predator, the shortfin mako is an integral part of the marine food web, regulating the many species below it. Its steep decline will likely cause oceanic ecosystems to suffer. As a long-lived, slow-reproducing species, the shortfin mako cannot quickly rebound from the substantial population losses it has already experienced.

The listing petition requests that the Fisheries Service consider listing the shortfin mako as an endangered species or a threatened species throughout all or a significant portion of its range and to designate critical habitat within U.S. waters. It also requests that the Service issue a 4(d) rule to give the species statutory protections against unauthorized “take” in the event of a threatened listing, and that the agency also issue a 4(e) rule to protect species similar in appearance, especially the longfin mako shark.

After a positive 90-day finding on a petition to list a species under the Endangered Species Act, the Service must initiate a status review. Based on its review of the best available scientific and commercial data, the agency must then publish, within 12 months of receipt of the petition, one of three possible determinations: (1) the petitioned action is warranted, in which case the agency publishes a proposed rule and takes public comment; (2) the petitioned action is warranted but precluded by higher-priority listing activities; or (3) the petitioned action is not warranted. The mandatory 12-month deadline is established by statute.

The June 28th notice of intent to sue starts a 60-day litigation-free window during which the Fisheries Service may resolve its violation of this deadline.