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Center For Biological Diversity v. National Marine Fisheries Service

United States District Court, W.D. Washington, Seattle

August 16, 2018

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
NATIONAL MARINE FISHERIES SERVICE; BARRY THOM, Regional Administrator of National Marine Fisheries Service West Coast Region; WILBUR ROSS, Secretary of Commerce, Defendants.

          Sarah Uhlemann CENTER FOR BIOLOGICAL DIVERSITY Attorney for Plaintiff

          COMPLAINT

         INTRODUCTION

         1. 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.

         2. Time 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.

         3. Low 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.

         4. To 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, 2014.

         5. On 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.

         6. To 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 meantime.

         7. 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.

         JURISDICTION AND VENUE

         8. This 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).

         9. Venue is proper in this district under 28 U.S.C. § 1391(e) because the legal violations are occurring in this district.

         INTRADISTRICT ASSIGNMENT

         10. 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 Divisions.

         PARTIES

         Plaintiff

         11. 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.

         12. 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.

         13. The 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.

         14. In 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.

         15. The 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.

         16. The 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.

         Defendants

         17. 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).

         18. 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 ...


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