By Sharon Young

The HSUS and The Ocean Conservancy filed a lawsuit Feb. 12 against the National Marine Fisheries Service to force it to protect three endangered whale species.

The agency is required by the Marine Mammal Protection Act to safeguard endangered whales by issuing rules to govern the activities of the shipping and fishing industries in areas where they jeopardize the species' safety. Time and again, the agency has shirked that obligation.

Populations of humpback whales, fin whales and North Atlantic right whales are threatened by fatal entanglements in commercial fishing gear. Scientists have found that fatal collisions with ships and lethal entanglements are responsible for the decline of the critically endangered right whales to an alarming population of 300.

The suit charges that the fisheries service should have adopted protective measures in 2003, following the 2002 death of a female right whale who became entangled in fishing gear and died off the coast of New England. The agency admitted that this whale's death required that new protective measures be put in place, but it has not issued rules requiring changes in fishing gear—and whales have continued to die. In addition to the five right whales that have died or been seriously injured since 2002, four fin whales and as many as 14 humpback whales have also suffered fatal injuries. 

Although entanglement can result in immediate death from drowning, in many cases whales die over a prolonged period of time if they become debilitated by injuries or infections caused by the entanglement. Of the 17 North Atlantic right whales known to have been entangled since 1986, it took an average of 10 months for the whales who did not manage to shed the entangling fishing gear to die. Gear wraps their flippers, mouths and tails; if the whale is young and still growing, it cinches ever tighter. This results in major tissue and bone damage and systemic infection. During this time, the whales often lose weight, causing them to sink when dead. That leads to an under-reporting of the number of deaths from entanglement.

Scientists consider fishing gear entanglement to be a major animal welfare issue as well as a conservation concern for this critically endangered species.

This is not the first legal action the groups have taken to protect endangered whales. In 2005, the groups sued both the National Marine Fisheries Service and the U.S. Coast Guard for failing to protect right whales from ship collisions. That case is pending in the District of Columbia. The HSUS also filed suit against the fisheries service in 1999 to force the agency to publish protective rules requiring modified gear for some fisheries. The lawsuit was resolved when the agency issued the required rules.

"It's a shame that the Fishery Service refuses to take action until it is sued" said John Grandy, senior vice president for Wildlife and Habitat Protection. "But if it won't do the right thing on its own, we will take action. It is our mission to protect animals, and these species are in dire need of our help."

Sharon Young is The HSUS marine issues field director.