North Atlantic Right Whale

Defenders of Wildlife v. Carlos Gutierrez


Species Background:

Herman Melville once noted that Right whales are perhaps "the most venerable of the leviathans" because they were one of the first species regularly hunted for their copious oils and baleen. Indeed, the right whale was such an easy and valued target that the whales were nearly hunted to extinction before the turn of the twentieth century. Today, despite over thirty years of domestic and international legal protection, the North Atlantic right whale has not recovered. The North Atlantic right whales – who make their home off the east of United States from Maine to Florida – spend a considerable amount of time in waters traversed by thousands of ships and blanketed with fishing gear. As a result, the whales are continuously threatened with ships strikes and entanglement. In fact, human activities cause at least 50% of all known right whale mortalities; ship strikes alone account for 38%.

The threat from ship strikes in particular has escalated recently and now appears to be jeopardizing the continued existence of the species. In 18 months between 2004 and 2006, 8 right whale deaths were reported, at least 4 of which were confirmed or suspected to be the result of ship strikes. The loss of 8 whales in less than a year and a half represents nearly 3 times the annual average. Even more disturbing, 6 of these 8 whales were reproductively mature females, 3 of which were carrying near-term fetuses at the time they were killed.

Case Background:

Despite the spike in whale ship strikes and the growing threat posted by increasing numbers of ships and expected increase of ship size and speed, the National Marine Fisheries Service (“NMFS”) and the Coast Guard have failed to take necessary steps to ensure the species’ survival and recovery. The implementation of protective measures has been considered by NMFS since 2000 but no action has been taken.

Defenders and co-plaintiffs filed suit in 2006 challenging NMFS’s refusal to promulgate emergency regulations to reduce the likelihood of ship strikes and the Coast Guard’s failure to meet its obligations under the Endangered Species Act to consult with NMFS on the effects of designating shipping lanes within right whale habitat.

NMFS refused to issue interim speed limits as permanent rulemaking stalled in the Office of Management and Budget for over a year. In response, Defenders filed a petition for emergency rulemaking, which NMFS denied. On June 26, 2008, Defenders filed a new lawsuit challenging both the agency’s denial of our renewed petition, and its prolonged delay in finalizing permanent regulations.

Related documents:

Complaint
Opinion
Defendant’s Response to Court’s Notice on Timing
Defendant’s Affirmation to Court’s Notice on Timing
Petition Complaint (6/26/2008)
Appeal Decision (7/18/2008)

Status:


Active

Co-filers:


Humane Society of the United States and The Ocean Conservancy

Updates:

07/18/2008
Victory for the critically imperiled right whale! In a lawsuit brought by Defenders and our conservation partners to secure protections for the North Atlantic right whale, the federal Court of Appeals for the District of Columbia held that the Coast Guard must ensure that the designating shipping traffic lanes in US waters will not contribute to the continued decline of these endangered whales. The court's decision means that the Coast Guard is required to consult with NMFS under the Endangered Species Act ( ESA) on the impacts to the right whale before establishing vessel separation lanes -- essentially roads in the water -- leading to US ports. Given that ship strikes are the leading cause of known right whale deaths and injuries, ensuring that the Coast Guard, the federal agency primarily responsible for regulating shipping traffic in US waters, will meet its responsibilities under the ESA is a major victory for the whales.

At the same time the court put NMFS on notice that its continued delay in implementing necessary speed restrictions on ships within right whale habitat must come to an end. While concluding that NMFS did not act unreasonably at the time rejecting Defenders' 2005 petition calling for the establishment of vessel speed limits because the agency was working towards such a rulemaking, the court made clear that the subsequent delay in finalizing the rule -- now extending over a year past the June 2007 finish date NMFS had told the federal courts -- calls that decision into serious question. Defenders agrees. While we remain optimistic that NMFS will follow through on its promise to promulgate speed limits in the near future, we are again ready to force this vital action through the courts.