whale s tail

The North Atlantic Right Whale: A Tale of Environmental Litigation

Post Authored By: Teresa Dettloff

The North Atlantic Right Whale is an endangered species, with only about 400 whales remaining in the population.  A lawsuit, Center for Biological Diversity v. Ross et al., takes an important step in protecting this endangered species. In this case, the District Court for the District of Columbia held that the 2021 Biological Opinion and 2021 Final Rule related to the American Lobster Fishery were invalid under the Endangered Species Act.[1]

The Dispute

This lawsuit arose out of conduct by the National Marine Fisheries Service (NMFS).[2] The NMFS supervises fisheries, and relevant to this case, the American Lobster Fishery. Lobster fishing is a profitable industry that supports many local economies. Lobsters are captured by employing “vertical-line” fishing gear, specifically, lobster traps.[3] This type of gear is dangerous to many species because the gear “has ropes stretching from the surface to the ocean floor into which the whales may swim and become entangled.”[4]

The Endangered Species Act provides a mechanism for parties to seek relief for violations of the statute by bringing claims against the United States or any other government agency.[5] Plaintiffs here allege, in part, violations of section 7(a)(2) of the Endangered Species Act, which provides, in summary, that federal agencies must review their actions to determine whether they will affect protected species, and if a specific threshold is met, the agency must work with an expert agency to conduct further analysis in the form of a Biological Opinion.[6] The critical question for the expert agency to assess is whether the proposed action or project would jeopardize the existence of an endangered or threatened species.[7] The agency must produce an incidental take statement (ITS) when an incidental take “is reasonably certain to occur.”[8] The ITS must address the impact of the project on the endangered species and measures to minimize such impact. 16 U.S.C. § 1536(b)(4).

Under the Endangered Species Act, the term “take” with respect to an endangered species means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

NMFS produced a Biological Opinion finding that the American Lobster Fishery would not jeopardize the North Atlantic right whale population. Specifically, in its opinion dated July 31, 2014, NMFS found that the fishery “may adversely affect, but is not likely to jeopardize, the continued existence of North Atlantic right whales.[9] The opinion recognized that the fishery had the potential to either kill or seriously injure 3.25 right whales annually, which was the average number of reported whales either killed or harmed due to entanglement in fishing gear each year.[10] NMFS did not include an ITS as required under the Endangered Species Act, which forms the basis of the lawsuit.[11] While NMFS did acknowledge that there would be an anticipated take, they neglected to include an ITS, which is required by statute.

Of note, North Atlantic right whales have protected status under the Endangered Species Act.[12] The court recognized that the two largest threats to the right whale population are entanglement in fishing gear and being struck by ships.[13] At the time the opinion was drafted, there were approximately 400 whales remaining in the species worldwide.[14]

The court ultimately determined that the regulations require an ITS, which NMFS did not undertake, and therefore the Biological Opinion finding that allowing the American Lobster Fishery to operate and employ certain techniques to catch lobster would not detrimentally impact the North Atlantic right whale population was in violation of the Endangered Species Act.[15]

Litigation has been ongoing to resolve the underlying issues alleged in the lawsuit. Most recently, the court issued a memorandum opinion and order on November 17, 2022, ordering that the issue of consultation was remanded to the agency.[16] The parties were also ordered to file a Joint Status Report by July 10, 2023, and every 6 months thereafter.[17]

Why It Matters

Protecting endangered species matters because the removal of a species damages the careful balance of ecosystems that we depend on. Litigation such as this is vital to conservation efforts and provides agencies an avenue to advocate for species that would otherwise have no way to advocate for themselves. Rules and regulations are also vital to balancing conservation goals and profitable industries that support local economies, such as lobster fishing. With appropriate rules and guidelines, local industries can flourish, and endangered populations can remain safe from further harm.

[1] Center for Biological Diversity v. Ross et al, 18-112 (JEB), Mem. Op (D.C. 2020).

[2] Id. at 8.

[3] Id. at 9.

[4] Id.

[5] Id. at 2.

[6] Id. at 3-4.

[7] Id. at 3.

[8] Id. at 5.

[9] Id. at 10.

[10] Id. at 10.

[11] Id. at 1-2.

[12] Id. at 1; See also NOAA Species Directory, North Atlantic Right Whale.

[13] Id.

[14] Id. at 9.

[15] Id. at 15.

[16] Center for Biological Diversity v. Ross et al., 18-112 (JEB), Mem. Op & Ord. (D.C. 2022), at 6.

[17] Id.

About the Author:

Teresa Detloff

Teresa Dettloff practices law in Chicago, Illinois and is a graduate of Loyola University Chicago School of Law, where she served as a lead article editor for the law journal. She is also a member of the United Nations Association Chicago Chapter.

Leave a Reply