NMFS Lists the Oceanic Whitetip Shark and Giant Manta Ray as “Threatened” Under the ESA

It is not often that we praise the National Marine Fisheries Service (NMFS), the federal agency in charge of oceanic fisheries and administration of the Endangered Species Act (ESA) with respect to marine species.  In this post, we give credit where it’s due — with a few very important caveats.

On January 22, NMFS issued a final rule listing the giant manta ray (Manta birostris) as “threatened” under the ESA.  NMFS rendered this decision in response to a November 2015 petition by Defenders of Wildlife (Defenders).  Sea Shepherd Legal lent its support to this petition by jointly filing comments with Defenders in April 2016.

One week after its decision on the giant manta ray, NMFS issued another final rule, this time listing the oceanic whitetip shark (Carcharinus lonigmanus) as “threatened.”  Once again, this decision was prompted by a petition from Defenders.  As with the giant manta ray, Sea Shepherd Legal was honored to join the fight, supporting Defenders’ comments providing new scientific evidence in favor of an ESA listing.


The oceanic whitetip shark. Photo credit: Joe Romeiro (2010).

NMFS’ decisions to list the giant manta ray and oceanic whitetip mark important steps in favor of conservation.  As species listed under the ESA, the giant manta ray and oceanic whitetip will now enjoy new protections under U.S. law.  For instance, once a species is listed as “endangered” or “threatened,” the ESA prohibits federal actions that would “jeopardize” such species or “adversely modify” its critical habitat.  16 U.S.C. 1536(a)(2).  These protections build on those supplied through the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).  The Conference of the Parties added both the giant manta ray and the oceanic whitetip to CITES Appendix II in 2013.

Nevertheless, we would be remiss not to mention the shortcomings of NMFS’ recent decisions.  First, NMFS’ rules do not, by themselves, prohibit “take” of the oceanic whitetip and giant manta ray.  “Take” is defined as the act of harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct.  16 U.S.C. 1532(19)).  In contrast to the situation with “endangered” species, the “take” prohibition does not apply to marine species listed as “threatened” unless protective regulations are issued under section 4(d) of the ESA (16 U.S.C. 1533(d)).  Thus, in the context of “threatened” marine species, the Secretary has discretion to decide whether, and to what extent, to extend the ESA’s “take” prohibition to such species.  The same goes for trade.  While it is unlawful to import, export, sell, or buy an “endangered” species, this is not automatically the case for “threatened” species.  Separate regulations are required.

In the case of the oceanic whitetip, NMFS stated that it is “not proposing such regulations at this time, but may consider potential protective regulations pursuant to section 4(d) for the oceanic whitetip in a future rulemaking.”  As for the giant manta ray, NMFS determined “that protective regulations pursuant to section 4(d) [including the ‘take’ and trade prohibitions] are not currently necessary and advisable for the conservation of the species.”

NMFS’ approach to “take” of giant manta rays is in considerable tension with the agency’s acknowledgment that “giant manta rays may be caught as bycatch in U.S. fisheries[.]”  Even if such bycatch has only “a minimal impact on the status of the giant manta ray,” NMFS errs in its casual dismissal of the conservation value of reducing bycatch.

Perhaps more importantly, international trade in shark and ray parts is one of the main drivers of population crashes.  In fact, NMFS candidly admits that “the main threat to the giant manta ray is the international mobulid gill plate trade.”  Similarly, with respect to the oceanic whitetip, NMFS frankly “disagree[d] that global regulations for . . . trade are adequate to control for the threat of overutilization via . . . the fin trade.” While the U.S. may not play a “significant” role in this trade, this hardly means that additional protections (on top of the incomplete protections under CITES) would be in vain.  To the contrary, U.S. leadership is desperately needed.

Additionally, NMFS declined to identify “critical habitat” for the oceanic whitetip and giant manta ray.  Section 4(a)(3)(a) of the ESA requires that, to the extent practicable and determinable, critical habitat be designated concurrently with the listing of a species.  According to NMFS, the presently available information is insufficient to make this determination for both species.  That claim is simply not convincing.  While data regarding oceanic whitetip populations and nursery sites is hardly complete, there is a range of scientific literature on the topic.  NMFS did not discuss any of this literature.  As for giant manta rays, NMFS summarily dismissed the idea of designating critical habitat in known aggregation sites under U.S. jurisdiction, including areas in Hawaii.

On the whole, NMFS’ decisions are steps in the right direction.  Still, much work remains to ensure adequate protections for the oceanic whitetip and giant manta ray.  In order to  make any significant progress in halting the devastating trade in shark fins and other shark products, the U.S. should institute a complete statutory ban on the buying and selling of shark parts, no matter the species.  Additionally, while certain federal and state laws prohibit the retention and sale of giant manta rays and their parts, they do not cover all persons, areas, and activities potentially subject to U.S. jurisdiction.  To truly ensure that the U.S. does not contribute to the decline of giant manta rays, our government should extend ESA protections to prohibit all take and trade.