Right Whales Get Mixed Ruling In D.C. Circuit

     WASHINGTON (CN) – The D.C. Circuit affirmed denial of an emergency petition seeking to impose marine speed limits in right whale habitat, but said the Coast Guard should consider the impact of shipping channels on the critically endangered marine mammal.

     Judge Sentelle noted that the National Marine Fisheries Service has still not published a promised final rule on ship strikes, but held that the service had valid reasons for denying the petition and is “well aware of its mandate” to protect the whales.
     The court denied the government’s argument that the Coast Guard plays only a ministerial role in developing and managing traffic separation schemes, which the court likened to street lanes in the sea.
     Wildlife activists, including Defenders of Wildlife and the Humane Society, claimed that the Coast Guard violated environmental law by allowing whales to be struck and killed by ships.
     The appeals court determined that the Coast Guard has passed the buck on responsibility for port traffic to the International Maritime Organization, a multinational body not subject to federal law.
     Right whales, so named because they are the “right” kind for hunting, have been imperiled for nearly a century and spend most of the year in heavily trafficked waters off the coast of New England. The government agency initiated ship-strike rulemaking in the summer of 2004 after four right whales, including three pregnant females, died from boat collisions. With the species population hovering at 300, the service has stated that “the loss of even a single individual” could lead to extinction.
     The court affirmed denial of the emergency petition, but remanded for reconsideration of the Coast Guard’s responsibilities.

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