Proposed Rule Would Regulate U.S. Navy's Impact on Marine Mammals

On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines. 

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine Mammal Protection Act, which generally prohibits the unauthorized take of marine mammals.  In addition, eight species (blue whale, humpback whale, fin whale, sei whale, sperm whale, the Hawaiian insular stock of false killer whale, Guadalupe fur seal, and Hawaiian monk seal) are listed as threatened or endangered, and afforded protection under the Endangered Species Act.  The Navy will be consulting with NMFS to further discuss mitigating any impacts on these eight species.

The comment period for the proposed rule ends on March 11.

Service Proposes to List Wolverine as Threatened Species

On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act.  The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations.  (See our posts from January 4 and January 14 for a discussion of this controversy.)

The wolverine resembles a small bear.  Adults weigh between 17 and 40 pounds.  The range of the species includes portions of California, Colorado, Idaho, Montana, Oregon, Utah, Washington, and Wyoming.  Wolverines tend to live in remote and inhospitable places and occur at low densities making it difficult to track their distribution.

The Service's proposed rule states, based on climate modeling, that "habitat loss due to increasing temperatures and reduced late spring snowpack due to climate change is likely to have a significant negative population-level impact on wolverine populations in the contiguous United States.  In the future, wolverine habitat is likely to be reduced to the point that the wolverine in the contiguous United States is in danger of extinction."  While the proposed listing would protect the wolverine from hunting and trapping, the Service has proposed a special rule that would permit a number of activities occurring within the wolverine's habitat to continue.  These activities, which are are often considered to result in take for other species, include infrastructure development, snowmobiling, backcountry skiing, and timber harvesting.  The Service stated in the proposed rule that it does not consider these activities to constitute a significant threat to the species.  

Although it now seems almost certain that the wolverine will receive some level of protection from the federal government, a number of environmental groups would likely argue that the wolverine should have received protection sooner.  There have been multiple petitions to list the wolverine over the past 20 years.  In April 1995, the Service concluded that a petition to list the wolverine as threatened or endangered did not provide substantial information indicating that listing may be warranted.  In October 2003, the Service issued a 90-day finding concluding that a second petition failed to present substantial scientific and commercial information indicating that listing may be warranted.  And in March 2008, after a third petition, the Service published a 12-month finding concluding that listing was "not warranted."  An environmental organization challenged this 12-month finding in federal court, however, and in order to settle the litigation the Service agreed to reconsider the petition.  Thereafter, in December 2010, the Service issued a 12-month finding concluding that listing was warranted but precluded by high priority listing actions.  But in 2011, the Service settled a set of consolidated actions challenging its practices with respect to candidate species.  The wolverine was one of the 251 candidate species covered by these settlements.