In Battle Over Whale, Judge Tears Up Agency Stonewalling

WASHINGTON (CN) – A federal judge opened the door Thursday for environmentalists to bolster claims over a lobster fishery they blame for the declining population of an endangered whale.

A ballet of three North Atlantic right whale tails break the surface off Provincetown, Mass., in Cape Cod Bay on April 10, 2008. Marine conservation groups say the endangered North Atlantic right whale is having such a bad year for accidental deaths in 2017 that all the mortality could challenge the species’ ability to recover in the future. There are thought to be no more than 500 of the giant animals left. Biologists say there have been 12 known deaths of the whales since April, meaning about 2 percent of the population had died in just a few months. (AP Photo/Stephan Savoia, File)

Ordering the National Marine Fisheris Service to produce discovery, U.S. District Judge James Boasberg said the Endangered Species Act allows the agency’s challengers to use evidence outside the administrative record.

“In order to accurately assess the alleged crisis of these cetaceans, the court will benefit from a record that reflects the actual, ongoing effects of the lobster fishery on the species,” the 16-page ruling says.

The cetaceans at issue are called the North Atlantic right whale. There were roughly 455 right whales left as of 2016, and the Conservation Law Foundation says at least 18 of these have been killed since 2017.

Joining a fight that the Center for Biological Diversity, Defenders of Wildlife and the Humane Society of the United States started in January, the Conservation Law Foundation took on the NMFS in May to ensure the right whale’s survival.

Their case, which has been consolidated before Boasberg, cites a 2014 biological opinion, which says at least three right whales die every year because they tangled up in gear used by the American lobster fishery — a $666.5 million operation that spans Maine to Cape Hatteras, North Carolina.

The groups say they need evidence from outside the existing record because the government has not produced any statement or permit authorizing the incidental takings of right whales, despite long acknowledging that the lobster fishery causes death and injury to the species.

Boasberg agreed Thursday noting that it would be inappropriate to confine the record to past agency determinations since the challengers here seek to enjoin ongoing and future actions.

“Courts have repeatedly held that the consideration of extra-record evidence is available – and necessary – to determine whether there is an ongoing, impermissible ‘take’ of a species,” the ruling says.

Boasberg called it “hard to imagine how,” based solely on the administrative record of a past agency action, he could determine whether the NMFS has authorized or will continue to authorize actions that harm the right whale.

Applauding the court’s decision, Kristen Monsell, an attorney with the Center for Biological Diversity, emphasized that the continued survival of an entire species hands in the balance.

“The federal government shouldn’t be able to shield important documents about harm to these critically endangered animals from the court’s review,” Monsell said in an email. But the Trump administration also has a legal and moral obligation to do more to protect these amazing animals from more painful, deadly entanglements. Right whales could disappear forever if they keep getting tangled up in fishing gear.

Representatives for the Department of Commerce, the umbrella agency for the fisheries service, have not responded requests for comment.

%d bloggers like this: