MARINE MAMMAL COMMISSION - Annual Report for 1998 



the United States. The Solicitor General, on behalf of 

 the United States, submitted a brief in October 1998. 

 It noted that, since the original ruling in this case, 

 actions taken by the National Marine Fisheries Service 

 to establish a take reduction team and to regulate New 

 England fisheries had significantly altered the factual 

 underpinnings of the case. The federal government 

 therefore recommended that the Supreme Court either 

 (a) review the case, vacate the appellate court ruling, 

 and remand the case to the district court to reconsider 

 the case in light of the Service's regulations, or (b) 

 decline to review the case. 



The Supreme Court chose not to review the case. 



Humpback Whale v. Hurst - Following an incident 

 on 20 July 1997 when a Coast Guard vessel struck a 

 whale, Richard Max Strahan, on behalf of the hump- 

 back whale, the right whale, and himself, filed suit 

 against Coast Guard officials on 16 April 1998 

 seeking to enjoin activities that pose a risk to six 

 species of whales and three species of sea turtles. The 

 plaintiff contended that Coast Guard operations are "a 

 clear and present danger to the safety of listed spe- 

 cies..." that, unless enjoined, will result in additional, 

 unauthorized takings. The plaintiff is seeking a 

 declaratory judgment from the court that current Coast 

 Guard operations violate the Endangered Species Act 

 and the Marine Mammal Protection Act and an order 

 directing the Coast Guard either to cease its operations 

 or to alter them by decreasing the frequency of non- 

 emergency operations and by imposing speed limita- 

 tions. Among other things, the plaintiff asked the 

 court to order the Coast Guard to restrict vessel speed 

 to 5 knots during daylight hours and to cease opera- 

 tions entirely at night or in bad weather in areas 

 designated as right whale critical habitat and within 

 the boundaries of the Stellwagen Bank National 

 Marine Sanctuary. 



The defendants filed an answer to the complaint on 

 19 June 1998. No other action was taken in this case 

 during 1998. 



Dead Humpback Wiale v. Schmitten — Subsequent 

 to striking a whale on 20 July 1997, the Coast Guard 

 reinitiated consultation on its operations with the 

 National Marine Fisheries Service under section 7 of 

 the Endangered Species Act. Mr. Strahan, on behalf 



of five endangered species of whales and himself, 

 filed suit on 2 July 1998 alleging that the Service has 

 failed to complete that consultation within the required 

 time period. He also alleged that the Service imper- 

 missibly refused to allow him to offer information or 

 otherwise to participate in the consultation. 



In a brief opposing the plaintiffs motion for a 

 temporary restraining order in this case, the defendant 

 noted that, contrary to allegations in the complaint, 

 the consultation on Coast Guard operations had been 

 concluded with the issuance of a new biological 

 opinion on 8 June 1998. The government therefore 

 argued that the case was moot. On this basis, the 

 government filed a motion on 1 September 1998 to 

 dismiss this case. The government also argued that 

 the dead whales, named by Mr. Strahan as plaintiffs, 

 lacked standing to sue and requested that they be 

 dismissed from the action. As of the end of 1998 no 

 further action had been taken in this matter. 



Bowhead Whale 

 {Balaena mysticetus) 



Bowhead whales occur exclusively in Arctic and 

 sub- Arctic waters. There are several discrete stocks. 

 All were severely depleted by commercial whaling by 

 the early 1900s. Since the mid- 1900s they have been 

 classified as protected stocks by the International 

 Whaling Commission (IWC). In the United States, 

 the species has been listed as endangered since 1970 

 when the Endangered Species Conservation Act, the 

 predecessor to the Endangered Species Act, was 

 enacted. Despite this protection, the Bering-Chukchi- 

 Beaufort Seas stock, perhaps the least exploited of the 

 stocks, is the only one that has shown any signs of 

 recovery. The other stocks in the Okhotsk Sea off 

 eastern Russia, in the Davis Strait and Hudson Bay in 

 northeastern Canada, and in the eastern Arctic off 

 eastern Greenland, Norway, and northwestern Russia 

 all number in the hundreds or fewer and show no 

 signs of recovery. 



The Bering-Chukchi-Beaufort Seas stock numbers 

 about 8,200 animals and includes about 90 percent of 

 all bowhead whales worldwide. Whales in this stock 

 migrate seasonally with the advance and retreat of sea 



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