On behalf of itself and several boat captains and owners, Southeastern Legal Foundation (SLF) filed a petition with the National Marine Fisheries Service (NMFS) at the National Oceanic and Atmospheric Administration (NOAA) to protect American’s right to enjoy the waters of the Atlantic by boating at a normal and safe speed. In its petition, SLF is asking NOAA to repeal or amend an unconstitutional 2008 federal NOAA regulation that imposes a speed limit on boats over 65 feet traveling the Atlantic Ocean to 10 knots. Under the Rule, if a captain goes over 10 knots—slower than a golf cart—he can be sent to jail for up to a year and be fined $20,000 for each instance of speeding.
The Rule, which was supposed to sunset after five years but never did, not only criminalizes boaters but also imposes unreasonable costs that are completely unnecessary given advances in technology that have better equipped boats to avoid striking whales. And NOAA did all of this without the legal authority to do so.
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Congress has long designated North Atlantic right whales as endangered. But although Congress has readily available technology at its fingertips to protect whales and despite the clear evidence that put out by NOAA itself that the Rule has done nothing to help whales, NOAA continues to enforce its 10-knot speed limit and turn American’s seeking to enjoy the waters and make a living into criminals.
From day one, the Rule violated basic constitutional commands because Congress never gave NOAA the authority to impose a speed limit in these waters. In 2003, five years before NOAA issued the Rule, its very own witnesses testified to Congress that NOAA lacked the power to issue such a speed limit and asked Congress to expand its powers so it could. Congress never did, but NOAA went ahead and issued the Rule anyway.
Not only is the Rule unconstitutional, but it has had and will continue to have a completely unnecessary and devastating impact on Americans. NOAA itself has spent $300 million of hard-earned American tax dollars on the Rule—money that can much more wisely and effectively be used to deploy cutting-edge technology that already exists to alert boaters to a whale’s location.
That is why SLF in its petition is urging NOAA to refocus its activities on technological advancements—like satellite tagging, thermal imaging, and acoustic buoys for example—and voluntary cooperation and rescind the arbitrary and ineffective Rule.