Organizations Join Legal Battle to Protect Blue Whale As Whale Deaths Increase

Organizations Join Legal Battle to Protect Blue Whale As Whale Deaths Increase

by Dan Bacher

Faced with the recent deaths of blue whales hit by boats off the California coast, Friends of the Earth, Pacific Environment, and the Center for Biological Diversity on November 19 joined a notice of intent to sue the federal government, submitted by the Environmental Defense Center this August, for the agency’s failure to implement the 1998 Blue Whale Recovery Plan.

"Among other actions, the recovery plan mandates that NOAA's National Marine Fisheries Service identify and implement methods to eliminate or reduce blue whale mortalities from ship strikes," according to a joint press release from the organizations. "The agency has failed to take this required action for more than a decade, despite the deaths of at least five blue whales from ship strikes in Southern California in 2007, as well as two additional ship strike mortalities along the California coast in October 2009."

That latest whale to die off the California coast was struck by a research vessel contracted by NOAA for a mission to map the sea floor for the California Ocean Protection Council. The death of the whale drew an angry response from North Coast environmentalists, fishermen and seaweed harvesters, since one of the main reasons the boat was mapping the ocean floor was to gather the data used to develop so-called state "marine protected areas" (MPAs) under Governor Arnold's widely-criticized Marine Life Protection Act (MLPA) process, as well as for federal MPAs.

Many believe that this whale and others would not have perished if required safeguards were in place to prevent the death of whales from ship strikes.

“Recovery plans serve as the primary ‘road map’ of actions necessary to both protect and recover our nation’s most imperiled wildlife species,” stated Brian Segee, staff attorney with the Environmental Defense Center (not to be confused with the Environmental Defense Fund). “The blue whale deaths in October again demonstrate that it is long past time for the Fisheries Service to carry out the Blue Whale Recovery Plan’s mandate to implement measures that will eliminate or minimize ship strikes.”

The majestic blue whale is the largest animal that has ever lived, growing up to 110 feet long and 150 tons in weight. Blue whales are found in oceans worldwide and are separated into populations by ocean basin in the North Atlantic, North Pacific, and Southern Hemisphere, according to the National Marine Fisheries Service (NMFS) Office of Protected Resources.

"Blue whales were hunted as early as the 19th century but were not intensively hunted until the turn of the 20th century," according to NMFS (http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/bluewhale.htm). "From the early 1900s to the mid-1960s blue whales were hunted in all the world's oceans and their populations significantly reduced. At least 9,500 blue whales were taken by commercial whalers throughout the North Pacific between 1910 and 1965 (Ohsumi and Wada, 1972) and at least 11,000 were taken in the North Atlantic from the late 19th to mid 20th centuries (Sigurjónsson and Gunnlaugsson, 1990)."

Blue whale populations have begun to slowly increase in many areas in recent years. The species is now seen during the summer along many areas of the California coast, according to the groups.

While these increased sightings are cause for optimism, the groups note that blue whale population numbers remain at a small fraction of their historic levels. The four groups say that the global population is estimated to be 10,000 animals, compared to a population of at least 350,000 before whaling. In addition, the species is now confronted with a host of new and emerging threats, including not only ship strikes but climate change, ocean acidification, and noise pollution.

"Abundant blooms of krill have brought blue whales to our coast, which has given many people a wonderful opportunity to see this rare, mammoth creature,” said Andrea Treece, an attorney with the Center for Biological Diversity. “Unfortunately, as more whales have gathered off busy ports, more have been hit and killed by ships. The Fisheries Service’s refusal to address threats like ship strikes threatens to erase all the hard-won progress this species has made so far."

“The California coast is a major gateway for commercial shipping traffic and a prime feeding ground for the largest population of blue whales in existence," stated Jackie Dragon, Marine Sanctuaries Campaign program director for Pacific Environment. "It is imperative that we find ways to reduce the threat of lethal ship strikes in waters where these whales are most vulnerable. Slowing ships down is one proven way to do so.”

“The exponential increase in shipping off our coasts presents an ongoing and increasing threat of ship strikes to these magnificent animals,” said Marcie Keever, Clean Vessels Campaign director at Friends of the Earth. “The National Marine Fisheries Service, the agency charged with stewardship of the nation’s living marine resources, has remained indifferent to the plight of the blue whales for over a decade now. With this notice, we seek to finally compel the Service to take the protective actions required by law.”

The groups said recovery plans play a vital role under the Endangered Species Act by identifying not only the actions necessary to prevent further population declines and habitat loss, but the proactive steps needed to recover imperiled species. Despite the fact that more than a decade has passed since the Fisheries Service approved the Blue Whale Recovery Plan, the agency has failed to carry out key provisions of the plan intended to both minimize and eliminate threats caused by ship strikes, pollution, and other harmful activities, as well as to improve the agency’s limited knowledge concerning blue whale populations and habitat needs.

Under the Endangered Species Act, potential litigants must file a 60-day notice of intent to sue before lawsuits can be filed alleging that the government has failed to carry out its nondiscretionary duties under the Act. "While the conservation organizations are committed to pursuing legal remedies if necessary, it is their hope that submission of the notice will prompt the Fisheries Service to begin implementing the Blue Whale Recovery Plan without court intervention," the groups concluded.

Ironically, the boat that struck and killed a 70-foot blue whale off the Mendocino County coast near Fort Bragg on October 19 didn't have a valid permit at the time, according to a prominent sea surveyor.

Steve Sullivan, Vice-President of Sea Surveyor, Inc., said the Pacific Star, an out-of-state vessel from Alaska, was surveying without the required permit to conduct geophysical surveys in California waters when it struck the whale.

"The permit the Pacific Star has been operating under (provided by Fugro-Pelagos) expired on September 30 and the new permit was not approved by the State Lands Commission until October 22, three-days after the whale was struck," he said. "NOAA, the Federal sponsor for the seafloor mapping project being conducted for the Ocean Protection Council, has never had a permit to survey in California waters, nor do they adhere to the provisions of the permit that ensure protection to marine mammals."

Jim Martin, West Coast Director of the Recreational Fishing Alliance, summed up the feelings of many North Coast environmentalists and fishermen when he said, "How ironic it is that a rare blue whale was killed by the people who say they want to 'protect marine life.'"

Governor Arnold Schwarzenegger's fast track MLPA initiative, a process rife with mission creep, conflicts of interest and the corruption of the democratic process, is opposed by a broad coalition of North Coast environmentalists, Indian Tribes, fishermen and divers. The exclusion of Indian Tribes from the MLPA initiative hit the national spotlight when the National Congress of American Indians (NCAI) at their annual session from October 11-16 in Palm Springs passed a strongly worded resolution blasting the MLPA process for failing to recognize the subsistence, ceremonial and cultural rights of California Indian Tribes.

For more information about the killing of the blue whale off the Mendocino County coast, go to: http://www.indybay.org/newsitems/2009/11/11/18628386.php.

For more information about the notice of intent to sue, go the Center for Biological Diversity website: http://www.biologicaldiversity.org/news/press_releases/2009/blue-whale-11-19-2009.html