Pair of Lawsuits Seek to Bolster Protections for Right Whale

In this April 10, 2008 file photo, a North Atlantic right whale breaks the ocean surface off Provincetown, Mass., in Cape Cod Bay.  (AP Photo/Stephan Savoia, File)

WASHINGTON (CN) – The critically endangered right whale took center stage in a pair of federal lawsuits from an environmental nonprofit that says a significant reduction in protected fish habitat in the Northeast will further imperil the whale and other fish species.

In one of the lawsuits filed Monday, the Conservation Law Foundation says partial passage on April 9 of New England’s Omnibus Essential Fish Habitat Amendment failed to meet some of its initially worthy goals, like minimizing the impact of fishing gear on fish habitats.

The Conservation Law Foundation says the amendment opened up more than 3,000 square miles of once protected ocean in the Northwest Atlantic Ocean to commercial fishing activities known to destroy fish habitats.

“In the region, the final Amendment reduced the amount of currently protected essential fish habitat by over 40 percent and lifted current restrictions on destructive fishing practices in vital parts of the remaining ‘protected’ habitat, including areas that are critical habitat for endangered North Atlantic right whales,” the complaint says.

In particular, the environmentalists argue federal regulators have failed to minimize the impacts of fishing gears in the Cashes Ledge area, which has been closed since 2002 to large bottom trawls and other bottomtending fishing gears capable of catching groundfish.

They claim the National Marine Fisheries Service rubber-stamped the recommendation of industrial fishing groups and designated the area as a mortality closure, when it should have required the area remain closed for its ecological value.

“NMFS has again failed to protect fragile habitats and overfished species,” said Peter Shelley, CLF senior counsel, in a written statement. “If any place in the Gulf of Maine merits comprehensive, permanent protection from fishing and fishing gear impacts based on science, it is the Cashes Ledge area. Instead, the amendment opens the door to destructive commercial fishing practices down the line.”

According to a separate lawsuit filed Monday by the nonprofit, the National Marine Fisheries Service failed to conduct a consultation required by section 7 of the Endangered Species Act prior to partial passage of the amendment to determine its impact on North Atlantic right whales.

The whales were listed as endangered in 1973, while Northeast water bodies were designated in 1994 as critical habitat for the species.

That complaint notes that the species needs more, not less protection because of recent developments.

“A rash of recent and unprecedented deaths in 2017 has pushed the species closer to extinction,” the lawsuit says. “Since April 2017, at least 18 North Atlantic right whales (four percent of the population) have died and, for the first time ever, no new calves have been spotted this year.”

The complaint says the right whale population has declined since 2010, while their reproductive health is failing.

“Scientists now estimate that fewer than 440 individuals remain (with less than 100 reproductively viable females), and without immediate action, the species could be functionally extinct in fewer than 25 years,” the lawsuit says.

According to the complaint, passage of the amendment opened up areas once closed year-round for more than 20 years to destructive bottom fishing equipment known to entangle whales in some of the most critical habitat for the species.

The Conservation Law Foundation alleges that the amendment violates both the Endangered Species and Magnuson-Stevens Fisheries Conservation and Management Acts.

Both lawsuits name as defendants commerce secretary Wilbur Ross, assistant administrator of NOAA Fisheries Chris Oliver and the National Marine Fisheries Service.

A Department of Commerce spokesperson declined to comment on the pending litigation. The National Marine Fisheries Service likewise said as a matter of policy it does not comment on litigation matters.

According to the complaint challenging partial passage of the Omnibus Essential Fish Habitat Amendment, the amendment violates a provision of the Magnuson-Stevens Fisheries Conservation and Management Act that requires protection of essential fish habitats in the Eastern, Western and Centrals Gulfs of Maine.

The Conservation Law Foundation says the National Marine Fisheries Service ignored the best available science and failed to consider practicable alternatives that could actually enhance habitat protections, in violation of the environmental review requirement of the National Environmental Policy Act.

The nonprofit also claims the action was arbitrary and capricious under the Administrative Procedure Act.

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