Center for Biological Diversity

Protecting endangered species and wild places of western North America
and the Pacific through science, policy, education, and environmental law.

Conservationists Going Back to Court to Compel NMFS to Protect Habitat

FOR IMMEDIATE RELEASE Contact: Brent Plater (415) 572-6989

10-25-2001: The Center for Biological Diversity ("Center") filed a formal 60-day notice of its intent to sue the National Marine Fisheries Service ("NMFS") in order to challenge NMFS' failure to designate and revise critical habitat for two endangered Alaskan whales.

The lawsuit stems from two formal critical habitat petitions filed under the federal Endangered Species Act ("ESA") by the Center last year. On February 17, 2000, the Center formally petitioned NMFS to designate critical habitat for the Bering-Chukchi-Beaufort stock of the bowhead whale, and on October 13, 2000 the Center formally petitioned NMFS to revise the critical habitat designation for the Northern right whale.

The Center began legal proceedings in June of 2001 when NMFS failed to make a mandatory initial determination on the petitions. These proceedings led to the prompt publication of NMFS' determination that the petitions presented substantial scientific information indicating that the proposed critical habitat designations and revisions may be warranted. Pursuant to the ESA and NMFS' own regulations, NMFS' next step was to make a substantive determination on the petitions by October 13, 2001. Unfortunately, once again NMFS has failed to make a timely determination, and has given no indication of when or if the legally mandated finding will be made.

"Our Country made a solemn pact to protect these whales and their habitats in a timely manner, and NMFS has disregarded this commitment every step of the way," charged Brent Plater, attorney for the Center for Biological Diversity. "For Northern right whales-the most imperiled whale in the world-and for Bowhead whales, every day they live without a federally protected home is another day they risk losing the places they need to feed and breed. And if we fail to protect even their basic requirements, how can we expect to see these majestic creatures flourish?"

Both the Northern right whale and the Bering-Chukchi-Beaufort stock of the bowhead whale are listed as endangered under the ESA. Federally listed species are entitled to several levels of protection, including the designation of "critical habitat": additional protection for habitat areas that are essential for the survival of the species and may require special management considerations. Critical habitat is supposed to be designated concurrently with a species listing. However, as evidenced by the Northern right whale and the bowhead whale, critical habitat determinations are often delayed for years and in most cases require citizen pressure to compel agencies to comply with the mandates of the ESA.

When confronted with their failure to adequately designate critical habitat for endangered species, federal agencies often try to excuse their delinquency by claiming that critical habitat is of little or no benefit to endangered species. However, federal agencies have repeatedly and soundly lost this argument in court. In TVA v. Hill, the United States Supreme Court stated "[i]n shaping legislation to deal with [the extinction crisis], Congress started from the finding that the two major causes of extinction are hunting and destruction of natural habitat. Of these twin threats…the greatest was destruction of natural habitats." Designating critical habitat will add significant new protection for these whales, and can halt destructive projects that could affect the species' survival.

Once abundant in both the Pacific and Atlantic Oceans, the Northern right whale is now the most endangered whale in the world. Prized for its oil and baleen plates-and preferred for its slow speed and floating-carcass characteristic-commercial whalers deemed right whales the "right whale" to hunt, and nearly extirpated the Northern right whale from both oceans. Today there may be only 300 right whales left in the Atlantic Ocean, and perhaps only 100 left in the Pacific. The Center's petition asks NMFS to designate part of the Bering Sea as critical habitat for the Pacific population of the Northern right whale. Recent information indicates that the Pacific population may actually be a distinct species: Eubalaena japonica.

The Bering-Chukchi-Beaufort Sea Stock is the largest and most viable of five extant bowhead stocks, yet it is simultaneously the most threatened by human activity. Large-scale industrial development and the associated vessel traffic of the oil and gas industry have proliferated within the bowhead's habitat since the late 1970's. No fewer than five massive offshore projects are currently in operation or in the planning stages in the Beaufort Sea, and an additional four onshore facilities produce at least some of their oil from offshore. The bowhead is threatened by loud industrial noises and the corresponding rise in the ambient noise level in the ocean, disturbance due to oil spills and other substances, and from collisions with vessels. The Center's petition asks NMFS to designate the Beaufort Sea as critical habitat for this Bowhead stock.

Photos and further information regarding the plight of the Northern right whale is available online.

Photos and further information regarding the plight of the bowhead whale is available online.


Go back