Despite decades of protection under both the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA), the North Atlantic right whale is in desperate straits. Without immediate, decisive action by the U.S. government, scientists predict that the species will become functionally extinct in twenty years. That is why Defenders of Wildlife and its conservation allies filed suit in federal district court in Washington, D.C. today (January 18, 2018) to challenge the National Marine Fisheries Service’s (NMFS) failure to fulfill its legal obligations under the ESA and MMPA to protect this critically endangered species from deadly entanglements in fishing gear.
Starting in the 11th century, Basque whalers hunted the right whale to near-extinction in western Europe; they later moved across the Atlantic to Labrador in the 16th century, continuing to hunt right whales through the 18th century. Beginning the 18th century, British and American whalers targeted the right whale, while Canadian whalers entered the hunt in the 19th century. Because the blubber-rich right whale swims slowly, stays close to shore and floats when killed, it was the “right” whale to hunt.
Little wonder, then, that when commercial whaling for right whales was finally banned in 1937, the species had plummeted to such low numbers that its survival was in serious doubt. Beginning in 1970, when the right whale was listed under the Endangered Species Conservation Act (the precursor to the ESA) and protected under the MMPA, the species became protected by two of our most important wildlife laws. Although whaling had ended, human-caused deaths did not: right whales continued to suffer serious injuries and mortalities from vessel strikes as well as entanglements in fixed fishing gear such as lobster and crab traps and pots. Defenders and its conservation allies worked for years through both policy and litigation channels to mitigate these threats, resulting in regulations to reduce the risks of entangling vertical lines and ship strikes.
Unfortunately, these efforts have not succeeded in putting the right whale securely on a path to recovery. Although population estimates had reached a high of 500 animals, last year, a new scientific analysis of population data showed that the species has been in decline since 2010 and that the population is only 450 surviving whales. Of these, scientists estimate only 100 are adult females capable of reproduction. In 2017, a mere five right whale calves were born, while a catastrophic 17 animals were discovered dead in Canadian and U.S. water — nearly 4% of the entire population. Worse yet, not all dead whales are recovered, so more right whales likely died than were detected. Simple math tells us that a species for which annual deaths greatly exceed annual births is on an inescapable extinction trajectory.
We now know that entanglement poses the most deadly threat to the species’ survival. Very few right whales have escaped injury from entanglements: some 85% of right whales bear entanglement scars. From 2010 to 2016, fishing gear entanglements caused 85% of right whale deaths for which the source cause could be determined. As air-breathing mammals, right whales can be drowned if they are so entangled in fishing gear that they cannot reach the surface to breathe. As terrible a death as drowning is, perhaps even more horrifying is the suffering that severely entangled whales endure before finally dying. Entangling ropes cut into a whale’s flesh, causing bleeding and infection. Entangled whales may not be able to feed effectively, leading to their eventual starvation. But the harms of entanglement don’t stop there: scientists have demonstrated that the energetic stresses of chronic entanglement on females has caused birth rates to go down. This is disastrous for a long-lived, slow-reproducing species such as the right whale. Female right whales typically reach sexual maturity around 10 years old and give birth to a single calf every three to five years thereafter. Yet since 2014, the average calving interval has increased every year, to a high of 10 years in 2017.
Yet fixed-gear fisheries do not need to continue using the same old-fashioned technologies (ropes attaching surface buoys to traps and pots on the bottom) to continue to catch lobster, crabs or other target species. Scientists and entrepreneurs are working hard to develop and test innovative ropeless fishing gear that can catch target species while completely eliminating the threat of entangling vertical lines in the water column. If implemented, these technologies are a win for fishermen and seafood consumers as well as whales. But the right whale is running out of time, and the window for implementing gear fixes that can save the species is closing fast.
Although Defenders has worked for years through the Atlantic Large Whale Take Reduction Team, a stakeholder group convened under the MMPA, to try to help NMFS find consensus-based solutions to the deadly threat of entanglements, the agency’s actions have been too little and too late. Because NMFS cannot continue to violate its obligations under the ESA and the MMPA to ensure the right whale’s survival, Defenders will fight hard in court — and will advocate outside of court — for the government to take immediate action to implement effective and innovative solutions to end deadly entanglements and save the right whale from extinction.