“Settlement” to Save Sea Turtles Leaves Unanswered Questions

sea turtleThe news is that BP has tentatively settled a case brought by environmental and animal protection organizations to stop the oil company from burning endangered sea turtles alive during efforts to contain oil from the catastrophic oil spill in the Gulf of Mexico.

But the questions remain: How did this happen in the first place? What about the other animals devastated by the ongoing spill and clean up or dispersal efforts? Where is Interior Secy. Ken Salazar whose job it is to protect endangered or threatened wildlife in the Gulf from oil and gas drilling operations?  Where is the U.S. government’s plan to protect wildlife during this oil spill catastrophe as required by the Clean Water Act?  

After a shrimp boat captain revealed he had seen turtles burning alive in fires set by BP to contain the oil, the Center for Biological Diversity joined with Turtle Island Restoration Network, Animal Welfare Institute and Animal Legal Defense Fund, and filed suit in Louisiana federal district court for a temporary restraining order to stop the travesty.

The Dept. of Interior was not part of the suit and does not appear to have lifted a finger to try to enforce the Endangered Species Act to save these animals from a horrific death. The Coast Guard had done nothing to protect these animals during the clean up efforts as required by the Clean Water Act.    

As the complaint filed in this case explains the sea turtles are trapped in the sludge surrounded by fire-resistant booms that create "burn boxes” 60-100 feet in diameter. Shrimp boats are used to drag the booms to create the burn boxes, corralling the animals inside what becomes a fire pit, a death trap.

A number of species of sea turtles found in the Gulf, such as the Kemp’s Ridley sea turtle, are listed as endangered. 50 C.F.R. § 17.11. The Kemp’s Ridley sea turtle "is one of the rarest sea turtles on earth".

The Endangered Species Act

"The Endangered Species Act (‘ESA’) prohibits the ‘taking’ of any endangered and threatened species. 16 U.S.C. § 1538(a). The ESA defines the term ‘take’ to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. § 1532(19). The term "harm" includes an act which ‘kills or injures’ an endangered or threatened animal. 50 C.F.R. §17.3. The term ‘harass’ includes an ‘intentional or negligent act or omission which creates the likelihood of injury [to an endangered or threatened animal] by annoying it to such extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.’ 50 C.F.R. §17.3. Section 10(a)(1)(B) of the ESA authorizes the Secretary of Commerce, through the National Marine Fisheries Service (‘NMFS’) (with respect to marine species), to issue a ‘permit’ for any act that is otherwise prohibited by Section 9, when the taking of the species is ‘incidental’ to an otherwise lawful activity – i.e., when the taking of the species is not the purpose of the activity." Like drilling for oil and gas.

The plaintiffs claim that it does not appear "BP has ever applied for or obtained an ‘incidental take permit’ pursuant to Section 10 of the ESAthat would allow it to kill or otherwise harm or harass endangered or threatened species." "Because the turtles are being caught in the corrals, they are being killed, harmed, or otherwise harassed by BP’s ‘controlled burns.’"

As of July 1, 594 sea turtles have been found dead since the start of the oil disaster. It is likely many more have been killed.

The Clean Water Act 

Also, the Clean Water Act, 28 U.S.C. § 1321(d), provides that the President "shall prepare and publish a National Contingency Plan ("NCP") for removal of oil and hazardous substances". The NCP "shall include…measures to protect fisheries and wildlife," §1321(d)(2)(C)(iii), and "[a] fish and wildlife response plan . . . for the immediate and effective protection, rescue, and rehabilitation of, and the minimization of risk and damage to fish and wildlife resources and their habitat". §1321(d)(2)(M).

It was up to the Coast Guard to develop and implement these protections especially for endangered or threatened species. That didn’t happen.

Where is Ken Salazar and what about the other animals?

BP conducted its drilling operations with a complete disregard for laws to protect marine life. It should be no surprise that the company shows the same criminal indifference to these laws during its purported clean up efforts. We know DOI Secretary Salazar was complicit in allowing BP to drill without even attempting to comply with laws to protect marine life.  Why is he still failing to enforce these laws during the clean up? Why is the President continuing to keep Salazar in this job of steward of our wildlife and natural resources?

To settle this case, BP has promised to work out a protocol with the Coast Guard to remove sea turtles before a controlled burn is initiated. At the least sea turtle rescuers will be allowed to be present during all burns to remove the animals.

It remains to be seen whether the proposed settlement is more than lip service by BP.

And there is still no indication that Secy. Salazar and the Minerals Management service have taken any action to make sure BP now complies with the ESA, the Marine Mammal Protection Act and other laws going forward. There is no word on plans to try to protect other animals devastated by the oil spill disaster as required by law.

The plan seems to be to allow BP to do what it wants and work out a settlement when private citizens catch the company in violations of ESA, the Clean Water Act or other animal protection laws.  In fact, to prevent anyone from learning first hand what may be happening to animals devastated by the ongoing oil spill, BP and the U.S. Coast Guard have now agreed that the public including the media must be kept at least 65 feet away from its operations in the Gulf. The Coast Guard has said violators of the new rule could be charged with a Class D felony and pay a fine up to $40,000.  There are already reports of Homeland Security with FBI agents running down photographers and demanding to see their photos.  

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