The Right Whale

The nearly extinct and endangered North Atlantic Right Whale is not holding its collective breath hoping the late Leonard Nimoy (“Spock”) will again time travel to our century to capture and transport two Right Whales (instead of the humpbacks George and Gracie) to the 23rd century to repopulate the species and save the Earth from an alien probe causing destructive climate change on Earth because there are no whale songs.  Star Trek IV:  The Voyage Home (1986).  Absent the Enterprise crew on a desperate mission to save mankind, we are using law and science to stave off extinction of the Right Whale in the 21st century.

The Right Whale can reach 60 feet in length and weigh 100 tons.  There are fewer than 411 individuals, including 100 breeding females, living in the remaining habitat close to the continental shelf on the East Coast.  The waters off Massachusetts are home to this rarest of all large whales.  They were named by whalers who identified them as the “right” whale to kill on a hunt because they are slow, swim close to shore, float to the surface after death, and produce a lot of oil.  Today, the leading causes of death are blunt force from ship strikes during migration through the busiest shipping lanes, entanglement in fishing gear, and bioacoustic impacts to calling and reproductive behaviors.  The species has low annual reproductive rates from deaths, and diminishing food sources due to climate and ocean process changes (in 2017, about 17 females were killed, and in 2018, no new calves were born).  Since the 1980s, females are now raising a baby once per decade. 

Hunting of the Right Whale was banned world-wide in 1937 and has steadily diminished.  Right Whales are listed as “species with extinction … affected by trade” (“CERES”), and as “endangered” by the IURN Red List based on extinction risk.  They are listed as “endangered” under the Endangered Species Act (“ESA”) and as “depleted” under the Marine Mammal Protection Act (“MMPA”).  In 2009, the National Ocean and Aeronautics Administration) “NOAA”) and the National Marine Fisheries Service (“NMFS”) (“NOAA Fisheries”) limited vessel speed to 10 knots in shipping lanes during the annual migration and where Right Whales gather during calving season.  NOAA Fisheries designated critical habitat in 1994 and revised the designation in 2016.  NOAA Fisheries and the Coast Guard have implemented a mandatory vessel reporting system:  When large vessels enter two key habitats, they must report to a shore-based system which advises about locations of recent Right Whale sightings, and precautionary measures to avoid strikes.  NOAA Fisheries has a “500-yard rule” prohibiting approaches of Right Whales by all fishing boats and recreational boaters, kayakers, surfers and paddle boarders.

NOAA Fisheries supports management measures to reduce whale entanglements in fishing gear, which is a primary cause of death, serious injury and reduced fertility.  As they feed, whales get entangled in vertical lines from buoys attached to lobster and crab pots on the ocean bottom, get trapped and drown, or suffer injuries from deep cuts to the body.  New gear has buoy lines that automatically release when pressure is applied by whales.  Ropeless technology with GPS and grappling hook or an inflation buoy is being evaluated and is promoted by Charles “Stormy” Mayo, Director of the Right Whale Ecology Program at the Center for Coastal Studies in Provincetown, who has been a “save the whale” activist since the 1980s.  Since 2014, NOAA Fisheries has banned lobstermen from setting traps in Cape Cod Bay between February 1 and April 30, and closed fishing in the Great South Channel southeast of Chatham between April 1 and June 30. 

Science is keeping track of the whales through ship and plane photography, electronic tags, and a network of 13 detection buoys listening for Right Whales in Massachusetts Bay.  The Center for Coastal Studies conducts early morning aerial surveillance from fall to spring.  The Center reported that about 221 Right Whales, or 54 percent of the population, were spotted in Cape Cod Bay.

Underwater noise interrupts normal behavior and may cause strandings.  Anthropogenic sound from Navy sonar and oil and gas seismic air gun blasts for proposed offshore oil and gas drilling may increase stress and health effects in Right Whales.  In March 2018, the U.S. District Court for the District of Alaska declared illegal President Trump’s order revoking an Obama ban on oil and gas drilling in the Arctic and Atlantic Ocean (Case No. 3-17-CV-00101-SLG).  The ruling tossed out the President’s unlawful order and restores inter alia permanent protections to 31 biologically rich canyons in the Atlantic Ocean which are critical habitat for the Right Whale and other species. 

In February 2018, Conservation Law Foundation and Earthjustice filed a lawsuit against the Secretary of Commerce and the National Marine Fisheries Service seeking declaratory and injunctive relief that the federal agencies failed to prevent jeopardy and unlawful takes of Right Whales from entanglement by the American lobster fishery in violation of the ESA, MMPA and the Administrative Procedure Act.  (Case 1:18-CV-00283; U.S. Dist. Ct. for D.C.).

On January 23, 2019, Vineyard Wind and CLF, the Natural Resources Defense Council, and the National Wildlife Federation entered into an agreement to protect Right Whales during the installation and operation of its proposed 84-turbine project in the lease of 160,000 acres a/k/a OSC-A-501, south of Martha’s Vineyard.  The agreement seeks “to minimize disruption of normal feeding, breeding and migratory behaviors and prevent injury to Right Whales.”  Turbine construction will not occur during the winter and early spring when whales may be in the area.  There will be seasonal restrictions on pile driving.  There will be monitoring to ensure construction does not occur when whales are near the site.  Real-time acoustic monitoring with a range of 10,000 meters will detect Right Whales within the clearance zone and result in construction shutdown.  Geophysical surveys will be seasonally restricted.  Construction noise levels will be reduced and attenuated so as to minimize impacts on the whale’s ability to communicate, locate food and migrate.  There will be a strict vessel speed limit of 10 knots.  The developer will also invest $3 million to develop and use innovative technology and fund scientific research.

In June 2018, Congress introduced legislation to protect the Right Whale.  Senate bill S 3038 and the companion House of Representatives bill H.R. 6060 were purely Democratic initiatives.  The SAVE Right Whales Act of 2018 would require a transition to buoyless fishing gear and provide $5 million per year for ten years for conservation programs aimed at rebuilding a healthy population of Right Whales; specifically, for funding projects to develop, test and use innovative technology to reduce entanglements in fishing gear and vessel collisions.  Given the divisiveness in Congress and penchant for military funding, it may be easier to fund faster than light space research than Right Whale protection!