Court Refuses to Dismiss Whale Migratory Route-Ship Traffic Conflict Suit

A press release issued last Thursday by plaintiff Center for Biological Diversity commended a ruling in a suit against the National Marine Fisheries Service (NMFS) as important to saving the declining population of critically endangered North Atlantic Right Whales. According to the Center, the decision comes shortly after scientists announced that the species’ population fell to only 336 individuals in 2020, representing an 8% decline from 2019 and the lowest number for the species in nearly 20 years.

As previously reported, four environmental groups challenged the agency’s purportedly unlawful delay in responding to two rulemaking petitions. The petitions, one filed in 2012 and the other in 2020, reportedly seek to expand the scope of a rule intended to prevent ships from striking whales by requiring them to slow down.

According to the Center, the extant 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 has a voluntary component, a “dynamic management system,” whereby vessel operators are asked, but not obligated, to slow to 10 knots or less when three or more right whales are seen in an area.

After the groups filed suit, the NMFS sent letters to them about their petitions noting that the agency agrees that more needs to be done to protect the whales from speeding vessels. The NMFS then sought to dismiss the case for lack of subject matter jurisdiction on the ground of mootness, arguing that its letters adequately “responded” to the plaintiffs’ petitions.

The District of Columbia’s opinion found that the NMFS’ letters constituted a “response” to the plaintiffs’ 2012 petition, but not their 2020 petition. As to the former, the court upheld the agency’s communication stating that it would take no further action on the petition as definitive.

By contrast, the court found that the 2020 petition gave rise to a live controversy because the letter did not adequately resolve the petition, namely, it did not state whether the NMFS would grant the petition. Accordingly, the court required the federal defendants to answer the complaint by November 24.

“Right whales need more protections from ship strikes, and they need them now,” Kristen Monsell, oceans legal director at the Center said in a statement. “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 plaintiffs are represented by Defenders of Wildlife, Conservation Law Foundation, and Center for Biological Diversity.