WAITING FOR CRITICAL HABITAT PROTECTION
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
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.
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
and further information regarding the plight of the Northern right whale
is available online.
and further information regarding the plight of the bowhead whale is available