In May, a group of nine environmental and animal protection groups, including The HSUS, submitted a petition to the National Marine Fisheries Service (NMFS) urging the federal agency to stop sitting on its hands and start writing emergency regulations to protect the critically endangered North Atlantic right whale, whose estimated population of 300 had lost eight members in the previous 15 months, including three pregnant females.
The petition urged NMFS, which had been promising regulations for four years, to take emergency action to help stop this population from going the way of the passenger pigeon. We argued that immediate action was necessary to control the right whale's main nemesis: large ships, which had rammed and killed at least 19 right whales in the last 19 years, according to one study. We suggested the agency could even implement some of its own previous recommendations—such as creating designated shipping lanes so that vessels could skirt critical right whale habitats near major ports—until NMFS could implement a final plan for reducing the risk of ship collisions.
In September, the agency had a simple response to our simple request: no. NMFS denied our petition because it believed emergency action wasn’t necessary.
With nowhere else to turn, The HSUS, along with Defenders of Wildlife and the Ocean Conservancy, filed a lawsuit today against NMFS for failing to protect the critically endangered North Atlantic right whale, which the agency acknowledges is "the rarest of all large whale species" and which federal agencies are required to protect by both the Marine Mammal Protection Act and the Endangered Species Act.
Additionally, the plaintiffs filed a companion notice of intent to sue the U.S. Coast Guard in 60 days if it continues to fail to implement safeguards for right whales. "The HSUS will not stand idly by and watch the federal government’s refusal to act drive the North Atlantic right whale to extinction," says Jonathan R. Lovvorn, vice president of Animal Protection Litigation for The HSUS.
A Dire Situation
According to the most recent estimate, there are fewer than 300 North Atlantic right whales left. The population is so low that scientists believe North Atlantic right whales cannot recovery under current conditions—the same conditions that NMFS does not deem an emergency. A recent study, led by Scott Kraus of the New England Aquarium and co-authored by Hal Caswell and Michael Moore of the Woods Hole Oceanographic Institution (WHOI), made just such a prediction.
“The bottom line is that human induced right whale mortality is currently exceeding a level that allows the population to grow,” said Michael Moore, a veterinarian and research scientist, in a July release announcing the study. “It is fulfilling the prediction made by Hal Caswell and Masami Fujiwara that if this level of mortality continues, the likelihood of the species having a sustainable future is very low.”
The situation is so dire for right whales that even the death of a single mature female jeopardizes the entire population's chances for survival. Which is why biologists and animal advocates alike were alarmed that three of the nine right whales found dead since February 2004 were pregnant females carrying near-term calves. Each apparently had been killed by ship strikes. The July 22 issue of Science magazine noted that the loss of these right whales, "six of them adult females and three carrying near-term fetuses, is unprecedented in 25 years of study of this species, Eubalaena glacialis."
What's more, the joint New England Aquarium and WHOI study noted that "50 right whales have been reported dead since 1986, at least half of them from human activities. At least 19 were killed by vessel collisions and at least six by fishing gear entanglement. In addition, there were 61 confirmed reports of whales carrying fish gear, with about half of those whales able to shed the gear or were disentangled by humans."
"The unceasing reports of right whales being struck and killed by ships makes it painfully clear that NMFS is not willing to fulfill its obligation," noted The HSUS's Lovvorn.
Natural (and Unnatural) History of Right Whales
The right whale is a large, slow-moving species that cannot easily out-maneuver an oncoming ship, particularly one traveling as quickly as commercial and naval vessels often do. Typically about 45 feet in length, right whales feed on some of the ocean's smallest creatures—animal plankton. Their size and slowness historically made them a favorite target—whalers dubbed them the "right whale" to hunt—and whaling drove the species to the brink of extinction until 1935 when international governments stepped in and banned the commercial whaling of right whales.
Right whales migrate from their summer feeding and nursery waters off New England and Canada to warmer southern waters in the winter. These Florida waters are where mothers give birth to their calves; together, mother and calf are most vulnerable to collisions with ships as they pass close to the shore during their travels up from the birthing waters to the plankton-rich waters of New England. Many of the documented right whale deaths have occurred near busy port areas, particularly in the mid-Atlantic region.
Scientists with the New England Aquarium report that close to half the dead right whales that they have found were floating within 12 miles of a shipping lane. For instance, last year a pregnant female right whale and her near-term calf were killed by a U.S. Navy vessel exiting the mouth of the Chesapeake Bay.
The rate of these collisions don't compare favorably to the birthing rates of North Atlantic right whales. The New England Aquarium and WHOI study noted that calf production for right whales as increased recently "from an average of 12 calves per year prior to 2000 to between 16 and 31 calves per year from 2001 to 2005." But in the same breath the study's authors stated that the increase is "insufficient to reverse the population decline, let alone compensate for the recent increase in deaths."
"The future of the right whale depends primarily on reducing deaths from human activities," study co-author Caswell noted in the July press release. “Steps have been taken to minimize risks to right whales, but more needs to be done. If mortality continues at the levels of the past year, this population will face extinction."
Empty Promises
In 2001, NMFS pledged within a year to implement a plan for reducing the risk of collisions between ships and right whales. The agency has faithfully renewed this promise each year since. In 2004, NMFS went one step further and issued an advance notice of its intent to publish a risk reduction plan, but it has done nothing since then. And while the agency twiddled its regulatory thumbs, four more right whales died.
In denying our petition, NMFS wrote that it is currently working on its long-promised final risk reduction plan, which it intends to release in early 2006. No mention was made of the right whales who continue to be placed at risk and die.
Here's the bottom line: Federal entities, such as the U.S. Coast Guard and NMFS, have pledged for years to take action to protect right whales, but their inaction speaks louder than their words.
