United States District Court, W.D. Washington
ORDER ON MOTION TO DISMISS
J. PECHMAN UNITED STATES DISTRICT JUDGE
above-entitled Court, having received and reviewed:
Defendants' Motion to Dismiss Complaint (Dkt. No. 10)
Plaintiffs' Opposition to Coast Guard Motion to Dismiss
(Dkt. No. 14);
Defendants' Reply in Support of Motion to Dismiss
Complaint (Dkt. No. 15); all attached declarations and
exhibits; and relevant portions of the records, rules as
ORDERED that the motion is DENIED.
FURTHER ORDERED that, within 21 days of the date of this
order, the parties will file a Joint Status Report with the
Endangered Species Act (“ESA”) protects and
conserves threatened species and their habitats by (among
other things) requiring federal agencies to consult with the
National Marine Fisheries Service (“NMFS”) to
ensure their discretionary actions do not jeopardize
threatened species or adversely modify a listed species'
critical habitat. 16 U.S.C. § 1536(a)(2).
is required if a proposed federal action “may
affect” a threatened or endangered species. 50 C.F.R.
§ 402.14(a). No consultation is mandated if the proposed
action will have no effect (Southwest Center for
Biological Diversity v. US. Forest Service, 100 F.3d
1443, 1447 (9th Cir. 1996) or if “the likelihood of
jeopardy is too remote.” Ground Zero Center for
Non-Violent Action v. U.S. Dept. of Navy, 383 F.3d 19082
1092 (9th Cir. 2004).
Ports and Waterways Safety Act (“PWSA”), passed
by Congress in 1972, authorized the Coast Guard to
“construct, maintain, improve, or expand vessel traffic
services, consisting of measures for controlling or
supervising vessel traffic, or for protecting navigation and
the marine environment, ” and to “control vessel
traffic in areas… which the Secretary determines to be
hazardous.” See 33 U.S.C. § 1233(a)(1),
(4). To that end, the Coast Guard may designate
“traffic separation schemes” (“TSSs”)
- defined as “a designated routing measure which is
aimed at the separation of opposing streams of traffic by
appropriate means and by the establishment of traffic
lanes” (see 33 C.F.R. § 167.5(b) - for
vessels operating in approaches to ports. See 33
U.S.C. § 1233(c)(1). Before the TSSs can be codified by
the Coast Guard, they must be approved by the International
Maritime Organization (“IMO”). 64 Fed. Reg.
adopted then implemented TSSs in the Strait of Juan de Fuca
in January 1982 and in the Puget Sound in June 1993.
See 75 Fed. Reg. 70, 818, 70, 819 (Nov. 19, 2010).
In August 2002, the Coast Guard issued a Notice of Proposed
Rulemaking (“NPRM”) stating that it would publish
the TSSs in the Federal Register. See 67 Fed. Reg.
54, 981 (Aug. 27, 2002); 33 U.S.C. § 1223(c)(4). The IMO
approved the requests and implemented the new TSSs on
December 1, 2006. IMO Circular COLREG.2/Cir.57 (May 26,
November 29, 2010, the Coast Guard published an announcement
concerning the TSSs which indicated that the interm rule
adopting the TSSs would become effective on January 18, 2011.
75 Fed. Reg. at 70, 818. Although public comments were
solicited (id.), none were received. 76 Fed. Reg.
23, 191, 23, 191-92 (Apr. 26, 2011). However, it was not
until April 26, 2011, that the Coast Guard issued a rule
“finalizing” the interim rule without change
(id.) (again, the agency had indicated that it would
entertain comments and consider changes up until that point;
see 75 Fed. Reg. at 70, 818).
brought this lawsuit under the Endangered Species Act
(“ESA”), alleging that the Coast Guard's
failure to consult with the NMFS during the process for
creation and codification of its TSSs in and around the
Salish Sea is a violation of the ESA. Dkt. No. 1, Complaint
at ¶¶ 73-78. Plaintiffs allege a cultural and
spiritual interest in the ESA-listed Southern Resident Killer
Whales (“the Southern Residents;” id. at
¶ 11), a species which they allege is threatened by the
risk of oil spills and “other harms from large vessel
traffic.” Id. at ¶¶
The lawsuit contends that the Coast Guard has an obligation
to “insure that large vessel traffic does not
jeopardize the continued existence of these species”
and that the Coast Guard's failure to consult with NMFS
“regarding the potential impacts of the shipping
traffic” on the Southern Residents is a violation of
the ESA. Id. at ¶ 5.
Coast Guard bases its request for dismissal on two grounds:
(1) that, because there is no showing that the harm of which
Plaintiffs complain is (a) reasonably likely or (b) is not
dependent on the actions of independent non-parties (i.e.,
persons or groups other than the Coast Guard), Plaintiffs