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Stranded dolphins: after the decision of the Council of State, a difficult compromise between NGOs and fishermen

On March 14, 2023, Sea Shepherd France activists took action by displaying dolphin corpses in front of the European Parliament in Strasbourg, France. © Jean-Francois Badias / AP

Text by: Louise Huet

9 min

On Monday, March 20, the Council of State ordered the French government to close certain fishing areas in the Bay of Biscay to ensure the survival of dolphins. While this decision was widely welcomed by NGOs, they remain vigilant about its implementation by the State. For their part, many fishermen denounce an attack on their activity.

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Images of mutilated dolphin corpses, bloodied, brought back by the swell and littering the beaches... Since mid-December 2022, at least 910 of these marine mammals have washed up on the French Atlantic coast, according to one of the latest counts from the Pelagis Oceanographic Observatory.

And Monday, March 20, the Council of State ruled in favor of the environmental defense associations. The High Court ordered the government to temporarily close some fishing areas in the Bay of Biscay within the next six months to protect dolphins in the region and "limit incidental catches". Indeed, Pelagis, French sentinel of marine mammal strandings, estimates that between 5,000 and 10,000 cetaceans are trapped each year by fishing nets in French waters, and die asphyxiated or lacerated.

With this decision, the Council of State followed the request of the three NGOs Sea Shepherd France, France Nature Environment (FNE) and Defense of Aquatic Environments, which had filed appeals with the body at the end of 2021. "Ahistoric victory" for Sea Shepherd France. "This new injunction gives us hope," says Jérôme Graefe, a lawyer at France Nature Environnement. Because according to him, the situation of cetaceans remains "catastrophic" for years. "The scientific findings today are clear and extremely serious. In the long term, the common dolphins of the Bay of Biscay could totally disappear, "storms the lawyer.

🐬 VICTORY!
The government forced by the @Conseil_Etat to apply spatio-temporal closures within 6 months to put an end to the massacre of thousands of #dauphins in the Bay of Biscay.
🤝 with DMA and @SeaShepherdFran https://t.co/hc66DIY1bi

— France Nature Environment (@FNEasso) March 20, 2023

While environmental NGOs welcome this decision while remaining "vigilant" on its implementation, the National Committee for Marine Fisheries and Marine Farming (CNPMEM) expressed in a statement its "astonishment" and "incomprehension" in the face of a decision that it considers "violent" for the profession. "This judgment is fatal and outrageous. For the past five years, professionals in the trade have been initiating technical and scientific programs to try to find solutions to reconcile fishing activities and dolphin protection. The State imposed an action plan on us in 2022, and there, the Council of State comes to question everything, "regrets Olivier Le Nezet, president of the National Fisheries Committee.

Especially since this conclusion of the Council of State comes as this Saturday, March 25, the World Day for the End of Fishing, a day claimed by several environmental NGOs, and established in 2017 by the Swiss Association for Animal Equality.

The State "in breach of its obligations

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This heated debate between fishermen and NGOs is not new, and this is not the first warning for the state when it comes to preserving the oceans. In 2019, a group of 26 European NGOs urged the European Commission to take legal action against member states that did not respect their commitment to protect the seabed, such as the 1992 Habitats Directive, which promotes the conservation of fauna and flora. The complaint had resulted in two convictions and a formal notice from the France in July 2020.

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Instead of protecting dolphins, the France is continually failing to meet its obligations at European level " denounces Jérôme Graefe. The Secretary of State for the Sea finally published a decree at the end of December 2022 to oblige more than 200 netters present in the Bay of Biscay to equip themselves with acoustic repellents (called "pingers"). The goal: to keep dolphins away from boats and nets thanks to a sound transmitter.

The state also launched an emergency plan in the summer of 2022 and a working group bringing together fishermen, scientists and associations to ensure its follow-up. But according to Lamya Essemlali, president of Sea Shepherd France, her NGO was excluded from this group at the request of fishermen, because of its refusal "to stop going to sea to film fishing expeditions and net haulings". Since 2018, Sea Shepherd France has been conducting Operation Dolphin Bycatch, which has been documenting dolphin catches to denounce "the opacity around the fishing industry." "Fishermen normally have a regulatory obligation to report dolphin catches. But at present, it is estimated that the reported share represents only between 1 and 2% of the total actual catch," says Lamya Essemlali.

The fishing sector, a "very important" business

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For its part, the Secretary of State for the Sea said on Tuesday, March 21 "take note of the judgment of the Council of State", and guarantees the strengthening of "innovative devices for detecting the presence of cetaceans". However, he speaks of an implementation of the systems "in winter" 2024 and not in the next six months, the deadline set by the Council of State. No mention is made of closure of fishing areas. Questioned at the Salon de l'Agriculture on February 25, Emmanuel Macron promised to commit to respecting the decision of the Council of State. Finally, the secretariat recalls "the investment of the fisheries sector in recent months to demonstrate its desire to preserve the marine environment and biodiversity".

A response of the State deemed "too timid" vis-à-vis the opinion of the High Court, but which does not surprise Jérôme Graefe. "The fisheries sector is a very important economic sector in France. Public actors do not want to antagonize fishermen, and in this sense, are afraid to take measures to protect biodiversity that could upset them, "he argues.

The closure of fishing areas, "the only unavoidable measure

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Sea Shepherd France points to some inappropriate methods already put in place by the government, such as acoustic repellents on fishing boats. This solution would not address the problem, according to NGOs and the Council of State. In its decision, the High Authority considers that "acoustic deterrent devices" do not "sufficiently reduce incidental catches". This opinion follows the recommendations established by researchers from the International Council for the Exploration of the Sea (ICES), published on 9 February. "When pingers are deployed in large areas, they create noise pollution that drives dolphins away from their feeding grounds, which is problematic for the survival of their species," Essemlali adds.

Another option: surveillance cameras on board boats. "They're great for gathering information and getting a better idea of the impact of fishing, but they're not going to prevent dolphins from catching," said Sea Shepherd France. To stop the "hecatomb", the only real solution recommended by the Council of State remains "the closure of fishing in areas and for appropriate periods". Following ICES guidelines, environmental NGOs suggest fences in fishing areas for three months in winter, where dolphin mortality rates are highest, and one month in summer.

A "win-win" measure for biodiversity, but also for fishermen, according to Jérôme Graefe. "With these spatio-temporal closures, the targeted species will be able to rest, so the fish will be able to grow and reproduce. There will be a greater abundance of fish, so the fisheries will be more fruitful the rest of the year, "says the FNE lawyer. Fishermen could also be compensated: "There are funds specifically earmarked to compensate for their downtime, such as the European Maritime and Fisheries Fund.

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For fishermen, "a wave of attacks

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But on the fishermen's side, the reactions are much more hostile. After the decision of the Council of State, Olivier Le Nezet, president of the National Committee of Marine Fisheries and Marine Farming (CNPMEM), published an open letter addressed to Emmanuel Macron. He denounced a "flood of attacks" from a "radical" ecology with regard to fishing, which according to him, aims to "put an end to their profession". "We have the feeling of deliberate sabotage of NGOs to avoid finding any solution," accuses the president of the CNPMEM, for whom the dialogue is now broken with the associations.

According to him, the Council of State issued a decision "without pragmatism or logic". "Fishermen are not there to fish for dolphins, we must stop pointing fingers at us as criminals. We talk more about that than about food sovereignty... The real subject we need is to be accompanied, and to determine technical solutions that do not prevent our activity, "he protests. Olivier Le Nezet also recalls the fact that foreign ships circulate in the region: "These States must also be involved in this program so that we can move forward together, otherwise it will not be effective." The president of the CNPMEM says he is studying the possibility of an appeal.

Accusations that the NGOs concerned defend themselves. "We never wanted to attack the fishing sector. Now, the sector must take this time of closure to think about fishing methods that are more selective and less destructive to marine biodiversity. He must take responsibility, "tempers Jérôme Graefe. The lawyer of France Nature Environnement also recalls that these closure measures only concern certain types of fishing. "There are more than 50% of boats that mobilize at least two different fishing gears during the year. We want solutions that also go in their direction, "he certifies.

What if the state refuses to comply? "He risks receiving tens of millions of euros in fines at European level," says Lamya Essemlali. For the latter, "this problem will cost millions of euros whatever happens, so it might as well be used to save dolphins rather than pay fines". In the coming months, NGOs intend to ensure the concrete implementation of measures and "respect for the law". If the government does not implement the decision of the Council of State, France Nature Environnement is already considering new legal proceedings.

► Read also: In Paris, awareness operation on the excess mortality of dolphins caused by fishing

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