United States District Court, W.D. Washington, Seattle
Uhlemann CENTER FOR BIOLOGICAL DIVERSITY Attorney for
Plaintiff Center for Biological Diversity challenges the
failure of the National Marine Fisheries Service, the West
Coast Regional Administrator, and the Secretary of Commerce
(collectively, “Fisheries Service”) to revise the
critical habitat designation for the Southern Resident killer
whale - one of the world's most
critically endangered marine mammals. With only 75 Southern
Resident killer whales left, expanding critical habitat to
protect key feeding areas off the U.S. West Coast will help
prevent extinction of the Pacific Northwest's iconic
killer whales and help ensure their recovery.
is of the essence in protecting endangered Southern Resident
killer whales. The population has reached its lowest point in
34 years and is continuing to decline. The most recent
mortality was a newborn whose mother carried the dead calf
for more than two weeks, at the expense of her own health.
availability of Chinook salmon, the whales' primary prey,
is contributing to their decline, and many of the animals are
starving and emaciated. Southern Resident killer whales have
failed to reproduce successfully since 2015. The principal
threats to Southern Resident killer whales -
starvation, contamination from toxic pollution, and
harassment from noise and vessels - can be
reduced by better habitat protections.
that end, the Center for Biological Diversity petitioned the
Fisheries Service to expand critical habitat to protect the
Southern Resident's winter feeding areas off the
Washington, Oregon, and California coasts on January 21,
February 24, 2015, the Fisheries Service determined that
revising critical habitat to protect the Southern Resident
killer whale's winter habitat was warranted. Despite its
findings, the Fisheries Service announced it would not
propose a critical habitat rule until 2017.
date, the agency has failed to propose, much less finalize, a
rule to revise Southern Resident killer whale critical
habitat. More than four years have now elapsed since the
Fisheries Service received the petition to expand critical
habitat for the Southern Resident killer whales. And it has
been more than two years since the agency admitted that a
revision was warranted. This ongoing delay deprives these
endangered killer whales of important legal protections and
the population has experienced an alarming decline in the
Fisheries Service's inaction constitutes agency action
unlawfully withheld or unreasonably delayed under the
Administrative Procedure Act and fails to ensure protections
required by the Endangered Species Act. 5 U.S.C. §§
551-706; 16 U.S.C. §§ 1531-44. Accordingly, the
Center for Biological Diversity seeks an order from the Court
establishing prompt deadlines for the Fisheries Service's
issuance of proposed and final rules to revise the Southern
Resident killer whale critical habitat designation.
Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 because this action arises under the laws of the
United States. 16 U.S.C. § 1540(c); 5 U.S.C. § 702.
An actual, justiciable controversy now exists between
Plaintiff and Defendants, and the requested relief is proper
under 28 U.S.C. §§ 2201-2202, and 5 U.S.C. §
706(1) (unlawfully withheld agency action).
Venue is proper in this district under 28 U.S.C. §
1391(e) because the legal violations are occurring in this
Pursuant to Civil Local Rule 3(e), this action is properly
assigned to the Seattle or Tacoma Divisions of this Court
because a substantial part of the events or omissions giving
rise to Plaintiff's claim occurred in counties in these
Plaintiff the Center for Biological Diversity is a nonprofit
corporation that advocates for the protection of threatened
and endangered species and their habitats through science,
policy, and environmental law. The Center's Oceans
Program focuses specifically on conserving marine ecosystems,
and seeks to ensure that imperiled species are properly
protected from destructive practices in our oceans. In
pursuit of this mission, the Center has been actively
involved in securing ESA protections for imperiled marine
mammals, including Southern Resident killer whales. In 2001,
the Center filed a petition to list the Southern Resident
killer whales as an endangered species, and through legal
action it secured the Endangered Species Act protections for
this population. The Center also has longstanding efforts to
protect the habitat of the Southern Resident killer whales
from water and noise pollution, disturbance from vessels, the
risk of offshore oil drilling activities, and other threats.
The Center has more than 63, 000 members, many of whom live
on the U.S. West Coast. The Center brings this action on
behalf of itself and its members.
Center members and staff live in and regularly visit ocean
waters, bays, beaches and other coastal areas to observe,
photograph, study, and otherwise enjoy Southern Resident
killer whales and their habitat. Center members have an
interest in Southern Resident killer whales and their Pacific
Ocean habitat, including waters off California, Oregon, and
Washington, and Canada. For example, Center members
frequently sail, kayak, and go whale watching to enjoy the
marine habitat and look for and photograph Southern Resident
killer whales. Center members and staff derive recreational,
spiritual, professional, scientific, educational, and
aesthetic benefit from the presence of Southern Resident
killer whales and their habitat. The Center's members and
staff intend to continue to use and enjoy the habitat of
Southern Resident killer whales frequently and on an ongoing
basis in the future.
Fisheries Service's failure to propose and finalize
Southern Resident killer whale critical habitat revisions
deprives the species of additional statutory protections that
are vitally important to its survival and eventual recovery.
The Fisheries Service's protracted failure to act
diminishes the aesthetic, recreational, spiritual,
scientific, and other interests of the Center and its members
because Southern Resident killer whales are more vulnerable
to harm and less likely to recover absent the critical
habitat protections. In the time the critical habitat rule
has been languishing, the species has remained vulnerable to
injury and death in the areas the agency has said warrant
additional protection; new harmful projects, such as offshore
oil and gas leasing have been proposed; and the population
has continued to decline. The Center and its members are
therefore injured because their use and enjoyment of Southern
Resident killer whales and those areas inhabited by the
whales are threatened, degraded, and harmed by the Fisheries
Service's failure to revise and expand critical habitat
off the Pacific Coast of the United States.
addition, the Center and its members are also suffering
procedural and informational injuries. The Center and its
members regularly comment on agency actions affecting
Southern Resident killer whales. The Fisheries Service's
ongoing failure to publish a proposed critical habitat rule
subverts the ability of the Center and its members to
meaningfully participate in the rulemaking process. It also
deprives the Center and its members of additional scientific
and other information regarding the habitat areas that are
most essential for the survival and recovery of Southern
resident killer whales.
above-described cultural, spiritual, aesthetic, recreational,
scientific, educational, procedural, and other interests of
the Center and its members have been, are being and, unless
the relief prayed herein is granted, will continue to be
adversely affected and irreparably injured by the Fisheries
Service's continued refusal to comply with their
obligations under the Endangered Species Act and the
Administrative Procedure Act.
relief sought in this case will redress these injuries.
Expanded critical habitat for Southern Resident killer whales
will likely contribute to better habitat protections, such as
reducing water and noise pollution, restricting vessel
traffic, and improving foraging habitat. These will improve
the chances of survival and recovery for Southern Resident
killer whales that are enjoyed by the Center and its members.
Defendant National Marine Fisheries Service is an agency
within the United States Department of Commerce. The
Fisheries Service is the agency to which the Secretary of
Commerce has delegated the authority to implement the
Endangered Species Act for most threatened and endangered
marine species (including Southern Resident killer whales).
Defendant Barry Thom is named in his official capacity as the
West Coast Regional Administrator of the National Marine
Fisheries Service. Mr. Thom has responsibility at the
regional level for implementing and ...