Four advocacy groups have challenged the National Marine Fisheries Service’s (NMFS) failure to act on two petitions they filed asking the agency to expand the scope of a rule intended to protect ships from striking North Atlantic Right Whales (Right Whales). Plaintiffs the Whale and Dolphin Conservation, Defenders of Wildlife, Conservation Law Foundation, and Center for Biological Diversity contend that though the Right Whale is on the brink of extinction, the NMFS has been delinquent in deciding whether to adopt further protective measures in violation of Administrative Procedure Act (APA).
Right Whales primarily live and migrate along the eastern seaboard of North America, the complaint explains. Reportedly, the species is one of the most endangered large whales worldwide, despite Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) safeguards.
Allegedly, the population has been in decline since 2010, in large part due to anthropogenic causes and in particular, vessel strikes. Adult females, juveniles, and calves are more susceptible to dying from vessel strikes and entanglements than adult males, the plaintiffs note. As a result, the complaint states, scientists believe there may be as few as 70 breeding females left in the wild, widening the gender gap between adult males and females. They advise that low birth rates coupled with the high death rate of breeding females means Right Whales could face functional extinction within 10 to 20 years.
The plaintiffs note that in 2008, NMFS implemented a vessel speed restriction in certain areas at specific times of the year along Right Whales’ Massachusetts to Florida migratory route. The rule applied to vessels 65 feet or longer. In 2012, three of the plaintiff organizations petitioned the NMFS to expand the rule in an effort to further protect the critically endangered whales from deadly collisions. Allegedly, the NMFS never responded.
Last year, all of the plaintiffs petitioned the NMFS once again, in response to an “Unusual Mortality Event that began in 2017 and the documented mortalities and serious injuries due to vessel strikes in U.S. waters…” To date, the complaint states, the NMFS has responded to neither petition, prompting the plaintiffs to file the instant lawsuit.
The NMFS’s unreasonable delay in acting on the plaintiffs’ petitions constitutes APA violations, the complaint asserts. In turn, the plaintiffs seek a judicial order setting a date by which the NMFS must respond to their petitions.