The grand leap of
the whale up the Fall of Niagara is esteemed, by all who have seen it, as one
of the finest spectacles in nature.
Franklin, Letter to British paper poking fun at Brits' lack of knowledge of
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
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
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.
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