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Center For Biological Diversity v. National Marine Fisheries Service

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

April 3, 2019

CENTER FOR BIOLOGICAL DIVERSITY and WILD FISH CONSERVANCY, Plaintiffs,
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 Sophia Ressler CENTER FOR BIOLOGICAL DIVERSITY Julie Teel Simmonds Catherine Kilduff Attorneys for Plaintiffs

          COMPLAINT

         INTRODUCTION

         1. Plaintiffs Center for Biological Diversity and Wild Fish Conservancy challenge the failure of the National Marine Fisheries Service, the West Coast Regional Administrator of the National Marine Fisheries Service, and the Secretary of the U.S. Department of Commerce (collectively, “Fisheries Service”) to consult on the impacts of the Pacific Coast Fishery Management Plan on critically endangered Southern Resident killer whales, also known as orcas.

         2. These iconic creatures are a cherished symbol of the Pacific Northwest's natural and cultural heritage, yet they are struggling to survive. There are only 75 Southern Resident killer whales left, including one newborn calf. The species' alarming decline in recent years means that time is running out to prevent extinction.

         3. Until a few months ago, Southern Resident killer whales had failed to successfully reproduce since 2015. Over 40 percent of newborn calves do not survive their first few years. In July 2018, a newborn calf lived for just under an hour. Her grieving mother, named Tahlequah, carried her body for 17 days over hundreds of miles.

         4. The most recent known death, which occurred in September 2018, was a three-year old Southern Resident killer whale named Scarlet who had been struggling to survive for months. She was one of the few females of reproductive age remaining in the population. Though her body has not been recovered, Fisheries Service scientists presume she is dead, and her body likely sank to the seafloor because she had become so thin and had very little blubber remaining.

         5. Researchers have been closely watching two other ailing Southern resident killer whales, Princess Angeline (a 42-year old female that is Tahlequah's mother) and Scooter (a 28-year old male). Both whales appear to be malnourished and show signs of “peanut head, ” where an individual has lost so much of its body fat that a depression appears behind its blowhole.

         6. In early January 2019, scientists confirmed a welcome new addition, a baby orca named Lucky, who was spotted swimming alongside its mother. Lucky is the first calf to survive past birth since 2015. Lucky and its mother are part of the L pod, the largest of the three pods (J, K, and L) that make up the Southern Resident killer whale population, each with its own distinct dialect of sounds it uses to communicate. Just this past week, the L pod was sighted in Monterey Bay, California, highlighting the expansive range of these orcas.

         7. The primary threats to Southern Resident killer whales are starvation from lack of adequate prey (predominately Chinook salmon), vessel noise and disturbance that interferes with key foraging and other essential behaviors, and toxic contaminants that bioaccumulate in the orcas' fat. Scientists recently concluded that of these three major threats to Southern Resident killer whales, prey depletion has the biggest impact on reproductive success and survival.

         8. The Pacific Coast Fishery Management Plan (“Pacific Salmon Plan”) governs management of commercial and recreational salmon fisheries in federal waters off the coast of Washington, Oregon, and California from 3 to 200 nautical miles offshore. The Pacific Salmon Plan is adopted by the Pacific Fishery Management Council and approved by the Secretary of Commerce. It contains management measures and allocation provisions for Chinook, coho, and pink salmon. The Council first issued a Pacific Salmon Plan in 1977. The current version of the Pacific Salmon Plan consists of the 1984 comprehensive framework amendment of the Plan through the most recent Amendment 19, approved by the Secretary of Commerce in 2016.

         9. Fisheries authorized under the Pacific Salmon Plan reduce the abundance of the Southern Resident killer whales' predominant prey by over 300, 000 Chinook per year and can directly interfere with feeding behavior, which causes the orcas to forage for longer periods, to travel to alternate locations, or to abandon foraging efforts.

         10. The Fisheries Service continues to rely on an outdated 2009 biological opinion to authorize salmon fisheries along the West coast under the Pacific Salmon Plan. From 2009 to present, scientists have produced significant new information about Southern Resident killer whales, the reasons for their decline from 85 animals in 2009 to just 75 today, their relationship to salmon, and the impacts of prey depletion on their survival and recovery.

         11. The Fisheries Service's failure to reinitiate and complete consultation on the impacts of the Pacific Salmon Plan fisheries on Southern Resident killer whales violates the Endangered Species Act. The Fisheries Service is failing to ensure that its authorization of Pacific Coast salmon fisheries under the Pacific Salmon Plan does not jeopardize the survival and recovery of Southern Resident killer whales.

         12. Accordingly, Plaintiffs seek an order from this Court establishing a prompt deadline for the Fisheries Service to reinitiate and complete consultation for Southern Resident killer whales and to implement mitigation measures to benefit the orcas.

         JURISDICTION AND VENUE

         13. 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, including the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq. and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706; 28 U.S.C. § 1346 (action against the United States); and 28 U.S.C. § 1361 (action to compel an officer of the United States to perform his or her duty). An actual, justiciable controversy now exists between Plaintiffs and Defendants, and the requested relief is proper under 28 U.S.C. §§ 2201-02, 5 U.S.C. §§ 701-706, and 16 U.S.C. § 1540(g).

         14. Venue is proper in this district under 28 U.S.C. § 1391(e). This action is brought against an agency of the United States and officers of the United States acting in their official capacities. Defendants maintain offices in the Western District of Washington, and the legal violations are occurring in this district.

         15. Plaintiffs provided the Secretary of Commerce and the Regional Administrator of the National Marine Fisheries Service with notice of the ESA violations more than 60 days prior to the commencement of this case.

         INTRADISTRICT ASSIGNMENT

         16. Pursuant to Civil Local Rule 3(e), this action is properly assigned to the Seattle Division of this district, because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in King County and Defendant National Marine Fisheries Service maintains its West Coast Regional office in King County.

         PARTIES

         Plaintiffs

         17. Plaintiff Center for Biological Diversity (“Center”) 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 wildlife and habitat. In pursuit of this mission, the Center has been actively involved in securing protections for imperiled marine mammals, including Southern Resident killer whales. In 2001, the Center filed a petition to list Southern Resident killer whales as an endangered species under the ESA, and through legal action it secured such protections for this population. The Center also has engaged in longstanding efforts to protect the habitat of Southern Resident killer whales from water and noise pollution, disturbance from vessels, the risk of offshore oil drilling activities and spills, and other threats.

         18. The Center has more than 69, 543 members, many of whom live on the West Coast of the United States. The Center brings this action on behalf of itself and its members. Center members and staff live near and regularly visit the inland waters and coastal habitat of Southern Resident killer whales 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 habitat, including waters around the San Juan Islands and along the Pacific Coast. For example, Center members regularly 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 benefits from the presence of Southern Resident killer whales and their habitat. Center members and staff intend to continue to frequently engage in these activities and to use and enjoy Southern Resident killer whales' habitat in the future.

         19. Plaintiff Wild Fish Conservancy is a 501(c)(3) member-based conservation ecology organization incorporated in the State of Washington in 1989. Wild Fish Conservancy works on a wide range of science-based projects consistent with its mission throughout the Northwest from California to Alaska. Wild Fish Conservancy is dedicated to the preservation and recovery of all native fish species and the marine and freshwater habitats they depend on. Wild Fish Conservancy is also committed to the preservation and recovery of the larger ecosystems that play a fundamental role in the survival and evolution of wild fish, including but not limited to key predators such as Southern Resident killer whales.

         20. Wild Fish Conservancy brings this action on behalf of itself and its approximately 4, 620 members. As a science-based environmental watchdog, Wild Fish Conservancy actively informs the public on matters affecting wild fish in the Northwest through publications, commentary to the press, and sponsorship of educational programs. Wild Fish Conservancy also conducts field research and habitat restoration projects and publishes technical papers. Wild Fish Conservancy has advocated, litigated, and publicly commented on federal and state actions that affect the region's native fish, the habitat on which they depend, and the greater ecosystem, including Southern Resident killer whales. Wild Fish Conservancy routinely seeks to compel government agencies to follow the laws designed to protect native fish species and other marine and freshwater species, particularly those recognized as threatened and endangered.

         21. Wild Fish Conservancy's members regularly spend time in areas in and around the waters occupied by Southern Resident killer whales, including waters around the San Juan Islands, Strait of Juan de Fuca, and along the Pacific Coast. Wild Fish Conservancy's members intend to continue to visit these areas to use, enjoy, and experience Southern Resident killer whales on a regular basis, including in the coming months and beyond. These members observe, study, photograph, and appreciate wildlife and wildlife habitat in and around these waters. These members also fish, hike, camp, boat, scuba dive, and swim in and around these waters.

         22. Wild Fish Conservancy's members derive scientific, educational, recreational, health, conservation, spiritual, and aesthetic benefits from the inland waters and coastal habitat of Southern Resident killer whales, as well as wild native fish species in those waters, and from the existence of natural, wild, and healthy ecosystems.

         23. The Fisheries Service's failure to reinitiate and complete consultation for Southern Resident killer whales using the best scientific data available fails to ensure that its actions do not jeopardize the continued existence of the endangered Southern Resident killer whales and deprives the species of additional protections that are vitally important to its survival and eventual recovery. The Fisheries Service's failure to reinitiate and complete consultation diminishes the aesthetic, recreational, spiritual, scientific, and other interests of Plaintiffs and their members, because without action, Southern Resident killer whales are more vulnerable to the impacts of insufficient prey availability, which also compounds their vulnerability to vessel disturbance and pollution.

         24. The absence of an updated consultation process and biological opinion places Southern Resident killer whales at greater risk of extinction and reduces their chances of survival and recovery. Since the last consultation in 2009, the population has declined from 85 to 75 individuals, a loss of over ten percent of the population. The Plaintiffs and their members are 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 ensure that its actions are not likely to jeopardize the continued existence of the endangered Southern Resident killer whales.

         25. In addition, the Plaintiffs and their members are also suffering procedural and informational injuries. The Plaintiffs and their members regularly comment on agency actions with respect to fishing activities that are likely to adversely affect Southern Resident killer whales. The Fisheries Service's ongoing failure to publish a biological opinion subverts the ability of the Plaintiffs and their members to meaningfully participate in the fisheries management rulemaking process. It also deprives the Plaintiffs and their members of additional scientific and other information regarding the health of the Chinook salmon stocks most essential for the survival and recovery of Southern resident killer whales.

         26. The above-described cultural, spiritual, aesthetic, recreational, scientific, educational, procedural, and other interests of the Plaintiffs and their members have been, are being and, unless the relief requested herein is granted, will continue to be adversely affected and irreparably injured by the Fisheries Service's failure to reinitiate ...


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