Center for Biological Diversity

Protecting endangered species and wild places of western North America
and the Pacific through science, policy, education, and environmental law.

February 12, 2001


lawsuit to challenge the National Marine Fisheries Service's failure to designate and revise critical habitat in Alaska

FOR IMMEDIATE RELEASE Contact: Brent Plater (510) 841-0812
More Information: Northern Right Whale

The Center for Biological Diversity ("Center") filed a formal 60-day notice today of its intent to sue the National Marine Fisheries Service ("NMFS") in order to challenge NMFS' failure to designate and revise critical habitat for two endangered Alaskan whales.

The lawsuit stems from two formal critical habitat petitions filed under the federal Endangered Species Act ("ESA") by the Center last year. On February 17, 2000, the Center formally petitioned NMFS to designate critical habitat for the Bering-Chukchi-Beaufort stock of the bowhead whale, and on October 13, 2000 the Center formally petitioned NMFS to revise the critical habitat designation for the Northern right whale. The ESA and NMFS regulations require the agency to determine whether the petitioned actions "may be warranted" within 90 days of receiving each petition. NMFS is now nearly 9 months late on the finding for the Bowhead whale, and over a month late on the finding for the Northern right whale.

"Maybe NMFS thinks missing deadlines by 9 months is good enough for government work, but I can name two of NMFS' charges for which the delay may be the difference between existence and extinction," said Brent Plater, attorney for the Center for Biological Diversity. "For Northern right whales-the most imperiled whale in the world-and for Bowhead whales, the delay prevents them from having a federally recognized home in Alaska."

Under the ESA, the "90-day finding" is the first procedural step towards designating critical habitat for imperiled species, and merely requires NMFS to determine whether the Center's petitions present enough information such that the proposed critical habitat determinations may be warranted. However, a positive 90-day finding does not provide immediate protection for species. Rather, it only begins another procedural stage in the ESA, where NMFS must conduct a review of the best scientific and economic information available to determine how to proceed with the critical habitat proposals. The second stage must be completed within 12 months of receipt of a petition.

Both the Northern right whale and the Bering-Chukchi-Beaufort stock of the bowhead whale are listed as endangered under the ESA. Federally listed species are entitled to several levels of protection, including the designation of "critical habitat": additional protection for habitat areas that are essential for the survival of the species and may require special management considerations. Critical habitat is supposed to be designated concurrently with a species listing. However, as evidenced by the Northern right whale and the bowhead whale, critical habitat determinations are often delayed for years and often require citizen pressure to compel agencies to comply with the mandates of the ESA.

When confronted with its failure to adequately designate critical habitat for endangered species, federal agencies often try to excuse their delinquency by claiming that critical habitat is of little or no benefit to endangered species. However, federal agencies have repeatedly and soundly lost this argument in court. In TVA v. Hill, the United States Supreme Court stated "[i]n shaping legislation to deal with [the extinction crisis], Congress started from the finding that the two major causes of extinction are hunting and destruction of natural habitat. Of these twin threats…the greatest was destruction of natural habitats." Designating critical habitat will add significant new protection for these whales, and can halt destructive projects that could affect the species' survival.

Once abundant in both the Pacific and Atlantic Oceans, the Northern right whale is now the most endangered whale in the world. Prized for its oil and baleen plates-and preferred for its slow speed and floating-carcass characteristic-commercial whalers deemed right whales the "right whale" to hunt, and nearly extirpated the Northern right whale from both oceans. Today there may be only 300 right whales left in the Atlantic Ocean, and perhaps only 100 left in the Pacific. The Center's petition asks NMFS to designate part of the Bering Sea as critical habitat for the Pacific population of the Northern right whale.

The Bering-Chukchi-Beaufort Sea Stock is the largest and most viable of five extant bowhead stocks, yet it is simultaneously the most threatened by human activity. Large-scale industrial development and the associated vessel traffic of the oil and gas industry have proliferated within the bowhead's habitat since the late 1970's. No fewer than five massive offshore projects are currently in operation or in the planning stages in the Beaufort Sea, and an additional four onshore facilities produce at least some of their oil from offshore. The bowhead is threatened by loud industrial noises and the corresponding rise in the ambient noise level in the ocean, disturbance due to oil spills and other substances, and from collisions with vessels. The Center's petition asks NMFS to designate the Beaufort Sea as critical habitat for this Bowhead stock.


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