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Home > Programs and Policy > In the Courts > Full Legal Docket

Right Whale Ship Strikes 2006


Date Filed: 01/12/2006
Case Status: Victory

Defenders of Wildlife v. Carlos Gutierrez


Species Background:

With an estimated 350 North Atlantic right whales remaining, the species remains on the precipice of extinction. The whales make their home off the east of United States from Maine to Florida, spending 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. Indeed, the National Marine Fisheries Service (NMFS) has concluded that entanglement in fishing gear and ship strikes are “the principal factorbelieved to be retarding growth and recovery of the population.” Human activities cause at least 50% of all known right whale mortalities; ship strikes alone account for 38%.

Case Background:

The threat from ship strikes has escalated as ships have grown ever faster and larger. 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.

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, NMFS and the Coast Guard failed for years to take necessary steps to ensure the species’ survival and recovery. Implementation of protective measures was considered by NMFS beginning in 2000 but no action was taken either to slow ships down or consider the impacts of their routing in right whale habitat until Defenders took legal action.

Defenders and co-plaintiffs filed suit in 2006 challenging NMFS’s refusal to promulgate emergency speed regulations for large ocean-going vessels in order 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 second lawsuit challenging both the agency’s denial of our renewed petition, and its prolonged delay in finalizing permanent regulations to address vessel speed for the protection of right whales.

Related documents:

Complaint (1/12/2006)
Opinion (3/30/2007)
Defendant’s Response to Court’s Notice on Timing (11/9/2006)
Defendant’s Affirmation to Court’s Notice on Timing (11/9/2006)

Co-filers:


Humane Society of the United States, Ocean Conservancy, and Regina Asmutis-Silvia.

Updates:

10/10/2008
Speed restrictions finalized! Finally carrying through on its years long promise to slow down large ocean going vessels in right whale habitat around East Coast ports, NMFS announced today a final rule effective December 9, 2008 that will slow ships to 10 knots at times and places whales are present. Although Defenders and its conservation partners cheered the implementation of measures that will provide real protections for whales now, the rule was not all they hoped and expected it to be. Of particular concern, the final rule includes an unprecedented sunset provision that will allow the rule to expire in 5 years unless there is affirmative evidence demonstrating its effectiveness. Given the difficulty in detecting ship strikes and the limited monitoring of right whale health and survival allowed by limited governmental and academic funding, Defenders remains concerned that there may be another battle to save the whales in another 5 years. Moreover, this action turns on its head the spirit of the ESA that are to receive the full protection of the Act until the species is recovered and no longer needs them.

07/18/2008
Victory for the critically imperiled right whale! In a second 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. Learn more about the 2008 lawsuit.