TALLAHASSEE — The federal government is trying to fend off a lawsuit challenging a boat speed limit designed to protect endangered North Atlantic right whales, which migrate each year to calving grounds off Northeast Florida and other parts of the Southeast.
U.S. Department of Justice attorneys Friday filed a motion asking a Florida federal judge to uphold the speed limit in a challenge filed by boat captain Gerald Eubanks, who was fined $14,250 for exceeding the limit while piloting a boat from Florida to South Carolina in 2022.
Friday’s motion and a competing motion filed in October by Eubanks’ attorneys seek summary judgments, which would effectively resolve the case without going to trial. U.S. District Judge Charlene Edwards Honeywell on Friday scheduled an April 10 hearing.
The lawsuit, which names as defendants the National Oceanic and Atmospheric Administration and U.S. Commerce Secretary Howard Lutnick, challenges the fine and the legitimacy of a rule that limits speeds to 10 knots for vessels that are over 65 feet during certain times and places off the East Coast. The National Oceanic and Atmospheric Administration, or NOAA, includes the National Marine Fisheries Service.
Eubanks exceeded the limit while piloting the 111.4-foot recreational vessel M/V Determination III in December 2022, according to another court document filed Friday. The rule was established in 2008.
The NOAA website describes North Atlantic right whales as “one of the world’s most endangered large whale species,” with about 380 remaining. Some migrate each fall from areas such as New England and Canada to calving grounds off Northeast Florida, Georgia and South Carolina.
In their October motion for summary judgment, Eubanks’ lawyers contended that NOAA exceeded its legal authority in the rule. The motion said the Endangered Species Act and another federal law, known as the Marine Mammal Protection Act, “stop short of prohibiting activities, like traveling faster than 10 knots, that merely carry the potential of resulting” in harm to such species.
“The ESA (Endangered Species Act) prohibits taking (harming), transporting or selling a right whale, but the speed rule forbids an activity that might result in take — even when no take occurs,” Eubanks’ motion said. “Indeed, Mr. Eubanks’s unremarkable voyage undisputedly encountered no right whales. These facts — that Mr. Eubanks violated the speed rule without taking a right whale — demonstrates that the speed rule creates a new prohibition rather than enforces the ESA’s prohibitions.”
But in its motion Friday, the federal government contended that the rule is “a necessary and appropriate regulation that carries out the mandates” of the Endangered Species Act and the Marine Mammal Protection Act. It said human interaction, including boat strikes, is the leading cause of right whale deaths and serious injuries.
“In sum, pursuant to (the laws), NMFS (the National Marine Fisheries Service) has discretion to promulgate regulations that it deems necessary and appropriate for the conservation of endangered marine mammals,” Friday’s motion said. “NMFS reasonably exercised this regulatory authority to implement the speed rule to reduce mortality and serious injury of right whales consistent with the ‘best interpretation’ (of the laws).”
Eubanks, who is represented by attorneys from the national group Pacific Legal Foundation, filed the lawsuit in March in the federal Middle District of Florida. The lawsuit came after an administrative law judge found Eubanks liable for exceeding the speed limit.
