Chapter III — Species of Special Concern 



right whales in U.S. North Pacific waters, no action 

 was taken in 1995 to establish a take reduction team 

 for the North Pacific stock of right whales. 



The Service's assessment for the western North 

 Atlantic stock cites a minimum population estimate of 

 295 whales and concludes that the potential biological 

 removal level is less than one whale. It also cites 

 records of fishery interactions, including entangle- 

 ment, involving large-mesh gillnets, cod traps, and 

 herring weirs. At the end of 1995, the Service had 

 not yet established an incidental take reduction team 

 to address the western North Atlantic right whale 

 population, but it was the Commission's understand- 

 ing that it planned to convene a team early in 1996 to 

 jointly address take reduction needs for right whales 

 and other endangered whales along the east coast. 



Right Whale Litigation 



On 7 June 1994 a complaint was filed in the U.S. 

 District Court for the District of Massachusetts 

 (Strahan v. Linnori) alleging that the Coast 

 Guard had violated provisions of the Endangered 

 Species Act, the Marine Mammal Protection Act, the 

 National Environmental Policy Act, and the Whaling 

 Convention Act. In the past four years, Coast Guard 

 vessels had struck and killed two northern right 

 whales, including one off Florida in 1993. The 

 plaintiff alleged that such taking of right and other 

 whales was prohibited. 



Accordingly, the plaintiff sought to enjoin certain 

 Coast Guard operations, including issuance of inspec- 

 tion documents to private vessels allowing them to 

 operate in U.S. waters, that may result in the death, 

 injury, or disturbance of any of six species of whales. 

 Among other things, the plaintiff asked the court to 

 order the Coast Guard to prevent its vessels and other 

 vessels from approaching within 500 yards of a 

 northern right whale or 100 yards of any other whale. 



The complaint also alleged that the Coast Guard 

 had violated the National Environmental Policy Act by 

 not preparing an environmental assessment on the 

 effects of its operations. It further alleged that the 

 Coast Guard had failed to consult with the National 

 Marine Fisheries Service to determine that its opera- 

 tions are not likely to jeopardize the continued exis- 



tence of right whales or other endangered species in 

 violation of the Endangered Species Act. 



To address some of the points raised in the com- 

 plaint, the Coast Guard initiated consultations with the 

 Service on the effects of its activities on endangered 

 whales and sea turtles. It also reviewed its vessel 

 operating procedures to identify ways it could better 

 avoid collisions with marine species. 



A hearing on the matter was held on 10 February 

 1995 and on 2 May the court issued its ruling. As a 

 preliminary matter, the court ruled that the plaintiff 

 only had standing to challenge Coast Guard activities 

 in the First Coast Guard District, which includes the 

 area between New Jersey and Maine. 



With regard to the Endangered Species Act, the 

 court ruled that until the consultations under section 7 

 were complete, the Coast Guard would not be in full 

 compliance with the Act. It found, however, that the 

 Coast Guard did not need to consult on its inspection 

 and documentation activities for other vessels because 

 the Coast Guard was statutorily required to issue 

 vessel documents if specific criteria were met and, 

 thus, did not have the discretion to withhold such 

 documents because of potential risks to endangered 

 whales. Noting recent efforts by the Coast Guard to 

 prevent its vessels from striking whales, the court 

 found the question of whether additional whales might 

 be struck to be a disputed material fact and declined 

 to rule on that issue until after the section 7 consulta- 

 tion is completed. It noted, however, that an injunc- 

 tion may ultimately be needed to prevent further 

 incidental taking of right whales by the Coast Guard. 



With respect to the Marine Mammal Protection 

 Act, the court found that the Coast Guard is required 

 to apply for a small-take authorization if it anticipates 

 that it will take a marine mammal at any time during 

 the course of its operations. Based on this ruling, the 

 court ordered the Coast Guard to apply for a small- 

 take authorization by 31 May 1995. 



The court also found the Coast Guard to be in 

 violation of the procedural requirements of the Na- 

 tional Environmental Policy Act. The court ordered 

 the Coast Guard to prepare, by 30 June 1995, a draft 

 environmental assessment and to provide to the court 



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