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Tribes v. Kelly

United States District Court, W.D. Washington

January 17, 2018

TULALIP TRIBES, et al., Plaintiffs,
v.
JOHN F. KELLY, et al., Defendants.

          ORDER ON MOTION TO DISMISS

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE

         The above-entitled Court, having received and reviewed:

         1. Defendants' Motion to Dismiss Complaint (Dkt. No. 10)

         2. Plaintiffs' Opposition to Coast Guard Motion to Dismiss (Dkt. No. 14);

         3. 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 follows:

         IT IS ORDERED that the motion is DENIED.

         IT IS FURTHER ORDERED that, within 21 days of the date of this order, the parties will file a Joint Status Report with the Court.

         Background

         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).

         Consultation 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).

         The 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. 32451, 32452.

         The IMO 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, 2006).[1]

         On 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).

         Plaintiffs 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 ¶¶ 3-4.[2] 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.

         Discussion

         The 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 have ...


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