A Tale of Two Whales


Pity the poor whale. All it wants is to peacefully swim in the ocean. Instead it finds itself caught up in a net of litigation and rule making processes.

Although whales off both the Atlantic and Pacific coasts of the United States have been affected by recent developments, it is probably not presumptuous to suggest that the Melon-head Whales in the Pacific are slightly envious of the Right Whales in the Atlantic.

The Melon-Head whales found themselves in federal court in California because of the Navy’s need to conduct training exercises using high-powered sonar. Although no whales were asked to testify as to the effect of the high powered sonar on their well-being, the Natural Resources Defense Council, acting as amicus belaenae, testified in the trial court that the tests could “disturb or threaten 170,000 marine mammals . . . and would cause permanent injury to more than 500 whales . . . .” The district court judge agreed with those who had entered their appearances on behalf of the whales and imposed certain limits on the Navy when conducting its exercises using high-intensity sonar. The 9th Circuit Court of Appeals agreed with the trial court judge. George Bush appealed to the U.S. Supreme Court, which disagreed and said the need for the Navy to conduct its tests took precedence over the need to protect the whales from the effect of the sonar.

Writing for the majority, Chief Justice Roberts said, “the most serious possible injury would be harm to an unknown number of marine mammals” whereas imposing restrictions on Naval exercises would force “the Navy to deploy an inadequately trained antisubmarine force” that would jeopardize “the safety of the fleet.” Posited that way the conclusion would seem to be a no-brainer and that is, how it came out. Chief Justice John Roberts wrote: “The president-the commander in chief-has determined that the training with active sonar is ‘essential to the national security’. We give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Prescribing courses of conduct in the interest of “national security” as determined by George Bush is not limited to whales. That was also the reason given for, inter alia, the eavesdropping program that Mr. Bush developed to protect us all from terrorism. One can only hope that the justification for impinging on the rights of whales to live peaceful lives is more firmly grounded than Mr. Bush’s assertion of the right to impinge on the right of U.S. citizens to live peaceful lives not intruded on by an eavesdropping government.

Meanwhile, thousands of miles away as the whale swims, the Right Whales were the beneficiaries of a set of regulations imposed by the National Oceanic and Atmospheric Administration (NOAA). During the 1800s Right Whales were the favorite of hunters because of their oil rich blubber and the fact that they were large and slow and, as a result, easy to kill. After their survival was insured by protection from whalers, a new threat arose-high-speed freighters. The Right Whale population is believed to be 300 or less and it is now protected both by the Endangered Species Act and the Marine Mammal Protection Act. Beginning in 1999 NOAA began developing federal speed limits on freighters in waters off the eastern seaboard where the Right whales live. The need for such regulations was obvious as NOAA explained saying: “One of the greatest known causes of deaths of North Atlantic Right whales from human activities is ship strikes.”

In 2006 it was disclosed that NOAA was close to imposing a 30 nautical mile buffer zone around several East Coast ports in which a 10-mile per hour speed limit would be enforced. The whales were delighted with the proposed rule but cargo companies were not. They said the imposition of this rule would cost them time and fuel. In late August it was announced that the buffer zone would be reduced in size from 30 nautical miles to 20 nautical miles. The new rules take effect in December.

Amy Knowlton, a research scientist at the New England Aquarium was quoted in the Palm Beach Post as saying: “It’s a huge step for the Right Whale. We’re disappointed about some aspects of the rule, but it hasn’t been so watered down that it won’t be effective.” Although the Right Whales won’t be told of the new rules, they will be delighted when their mortality because of encounters with vessels moving at high speeds, declines. The Melon-Head whale whose well-being was decided by an un-Noah-like Chief Justice probably wish that their fate had been left up to the other NOAA instead of to the Supreme Court-for good reason.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu






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