Defenders' Experts
Right Whale Ship Strikes 2008
Date Filed: 06/26/2008
Case Status: Closed
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:
Litigation arguing that the National Marine Fisheries Service has abrogated its duties under the ESA and Marine Mammal Protection Act to protect and recover the North Atlantic right whale by delaying the promulgation of regulations to establish speed restrictions and reduce the threat of ship strikes to the critically endangered species.
Defenders and co-plaintiffs first 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.
Related documents:
Petition Complaint (6/26/2008)
Appeal Decision (7/18/2008)
2006 Right Whale Ship Strike Legal Case
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! 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
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.
