Defenders of Wildlife v. Gutierrez, No. 07-5278 (July 18, 2008)
Photo of dead Right whale, towed by U.S. Coast Guard, from Coast Guard News.com Right whales are mostly black in color, generally grow up to 45–55 feet in length, and can weigh up to 70 tons. Proposed Endangered Status for North Atlantic Right Whales, 71 Fed. Reg. 77,704, 77,705 (Dec. 27, 2006) (“Proposed Endangered Status”). Right whales are so named because, historically, they were considered the “right” (correct) whale to hunt due to their close proximity to coastlines, their relatively slow speed, the prized oils they contain, and the large volume of blubber that gives them a tendency to float when dead. Relatively recent population estimates show around 300 remaining right whales. Proposed Endangered Status, 71 Fed. Reg. at 77,705. Ship strikes are “the greatest source of known deaths” of right whales. Proposed Rule, 71 Fed. Reg. at 36,300.
SUMMARY (from Court opinion): This case concerns the North Atlantic right whale (Eubalaena glacialis) (“right whale”) and the role of National Marine Fisheries Service (“NMFS”) and the Coast Guard in the federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. We affirm the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reverse its summary judgment order relating to the Coast Guard’s actions.