Court Rejects Federal Attempt to Sink Right Whale Ship Strike Lawsuit

North Atlantic right whales help our climate and make our ocean more resilient. We must push for better protections to protect our valuable partners in this fight. Photo: NOAA

An adult North Atlantic right whale with a calf. Photo: NOAA

November 11, 2021 (WASHINGTON) — A federal court on Wednesday rejected the Biden administration’s effort to dismiss a lawsuit aimed at protecting critically endangered right whales from being run over and killed by ships and boats in U.S. waters. The case challenges the National Marine Fisheries Service’s unlawful delay in responding to rulemaking petitions on vessel strikes.

The ruling comes two weeks after scientists announced that the right whale population had dropped to only 336 individuals in 2020 — an 8% decline from 2019 and the lowest population number for the species in nearly 20 years. Vessel strikes are one of the two primary threats to right whales; the other is entanglement in fishing gear.

“Right whale moms stay near the surface by the sides of their little ones who are not yet able to take long dives, putting both mom and baby at risk of being struck,” said Regina Asmutis-Silvia, executive director of Whale and Dolphin Conservation’s North American office. “Just like slowing down in a school zone, speed zones on the water gives boaters and the whales a chance to react and move out of harm’s way.”

Whale and Dolphin Conservation, Defenders of Wildlife, Conservation Law Foundation and the Center for Biological Diversity sued the Fisheries Service in January. The groups filed one legal petition in June 2012 and another in August 2020 following the second fatal right whale-vessel collision in six months. The groups are calling for more speed limits to reduce the number of vessel strikes.

“At this juncture, the fact NMFS hasn’t already addressed deaths due to vessel collisions is beyond incomprehensible,” said Erica Fuller, a senior attorney at Conservation Law Foundation. “We hope this will force the agency to take emergency action rather than wait until next spring to start a new rule-making process. That kind of delay does little to protect the moms traveling up and down the coast now.”

The petitions ask the Fisheries Service to expand the areas and times when its existing 10-knot speed-limit rule applies. They also urge the agency to make all voluntary vessel-speed restrictions mandatory and to apply the rule to small vessels (shorter than 65 feet) as well as large ones to avoid collisions that kill and injure right whales.

“There are fewer than 70 reproductive females left to birth the next generation of right whales,” said Jane Davenport, senior attorney at Defenders of Wildlife. “Over the last two years, ship strikes have killed not only three calves but two mothers as well. We don’t have another two years to wait for a long-overdue rule. NMFS has to act quickly to slow down vessels on the southern calving grounds to protect the right whale’s future.”

Following the filing of the case, the Fisheries Service sent the groups a letter about their petitions and then sought to dismiss the case as moot. The court’s ruling finds that the letter sufficiently responds to the groups’ 2012 petition, but does not constitute a response to their 2020 petition.

In the letter, the Fisheries Service referenced a report it issued in January. The report concluded that the existing ship speed rule isn’t sufficiently protective of right whales and should be expanded. The ruling recognizes that a report does not constitute action.

“Right whales need more protections from ship strikes, and they need them now,” said Kristen Monsell, oceans legal director at the Center. “We hope this ruling sends a strong signal to the Biden administration that it must act immediately. The clock is running out for right whales, and further delay is unacceptable. Slowing ships will speed up right whale recovery by preventing deadly collisions where these whales feed and raise their young.”

The existing speed rule applies only to vessels 65 feet and longer and sets seasonal speed limits off Massachusetts, the mid-Atlantic and the whale’s calving grounds in Georgia and Florida. It also establishes a voluntary, dynamic management system whereby vessel operators are asked, but not required, to slow to 10 knots or less when a group of three or more right whales is seen in an area.

The court ordered the Fisheries Service to answer the groups’ complaint by Nov. 24.

Experts are available for further comment.