Center for Biological Diversity

Protecting endangered species and wild places through
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Despite Six Years of Continuous Sightings in SE Bering Sea, NMFS Claims it Can’t Determine Critical Habitat for Right Whale


Contact: Brent Plater (510) 841-0812 or (415) 572-6989
More Information: Northern Right Whale, Federal Register Notice

Abdicating its mandate from Congress to protect the most endangered large whale on Earth, the National Marine Fisheries Service (“marine agency”) announced today in the Federal Register that it is refusing to take action to protect the habitat of the North Pacific right whale, Eubalaena japonica. The marine agency was petitioned by the Center for Biological Diversity to designate critical habitat for the whale on October 4, 2000.

“The Bush administration had to ignore its own recovery plans, its own scientists, and its own regulations to take this indefensible position,” said Brent Plater, attorney for the Center for Biological Diversity and author of the critical habitat petition. “We will not allow the right whale to be sacrificed in Bush’s attempt to eviscerate the ESA, and neither will the courts.”

In the announcement, the marine agency held that the “extent of critical habitat cannot be determined at this time because the essential biological requirements of the population…are not sufficiently understood.” However, the biological and ecological needs of right whales have been known for decades, the marine agency own biologists have published data indicating that right whales have occurred in this region despite changes in the ecology of the Bering Sea, and ongoing threats to right whales in the Bering Sea have been identified by high-ranking marine agency scientists. All of this information was available to marine agency at the time it made the determination, yet the agency failed to take action to protect the most imperiled whale in the world.

“The marine agency has failed to take the most basic steps to protect this population,” said Plater. “There is no recovery plan for the species, there is no critical habitat designated, and the marine agency even refused to craft regulations to help protect the whales while they forage in Alaskan waters. The right whale’s resurgence in the Bering Sea should be a symbol of hope for a region facing ecological collapse, but the marine agency insists on treating the population like a pariah.”

The Center for Biological Diversity will continue to champion the critical habitat designation for the right whale through both administrative and legal avenues. Today the Center will file a 60 day notice of intent to sue the agency for failing to designate critical habitat for the Pacific right whale, and will also file a Freedom of Information Act request for all information the marine agency relied on in making its determination, in order to expose the inadequacy of this determination.

The Center’s original petition was submitted to designate critical habitat for the North Pacific population of the northern right whale, Eubalaena glacialis. However, shortly after the petition was filed, the marine agency reclassified E. glacialis into two different species: E. glacialis in the Atlantic Ocean, and E. japonica in the Pacific Ocean. E. glacialis already has critical habitat designated, but the marine agency has never attempted to designate critical habitat for what is now known as E. japonica, despite recommendations from its own right whale recovery team.

Because much is still unknown about the migratory habits of the northern right whale, the Center identified both currently occupied and currently unoccupied marine habitats as critical for the right whale. The proposed critical habitat areas were based on biological and physical characteristics compiled by NMFS itself. The proposed critical habitat comprises a very small but critical portion of the historic range of the species.

Designating critical habitat for the right whale provides significant conservation benefits to the species. The ESA prohibits federal agencies from carrying out, funding or permitting activities that result in the adverse modification of designated critical habitat, whether or not the whales currently occupy the area. In this way, the ESA ensures that migratory endangered species like the northern right whale will have a home to return to after they end their migration. Without critical habitat designation, the protective provisions of the ESA would travel with the individual whales, leaving their seasonal home at risk of human encroachment.

Although no longer commercially hunted, northern right whales are killed each year by human activities. Ships entering and exiting ports such as Dutch Harbor, Alaska, the leading fishing port in the U.S., can potentially strike and kill right whales as they feed, sleep, and play at the ocean’s surface. Because the right whale’s historic range is in the heart of the largest commercial fishery in the U.S., commercial fishing gear can entangle the whales, suffocating them and/or preventing them from feeding, leading to eventual starvation. In addition, northern right whale habitats are being degraded by pollution and destroyed by habitat modification.


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