In Right whale case, D.C. Circuit finds the District Court wrong, and Coast Guard ESA dispute coming soon
Defenders of Wildlife v. Gutierrez, No. 07-5278 (July 18, 2008)
Photo of dead Right whale, towed by U.S. Coast Guard, from Coast Guard News.com Right whales are mostly black in color, generally grow up to 45–55 feet in length, and can weigh up to 70 tons. Proposed Endangered Status for North Atlantic Right Whales, 71 Fed. Reg. 77,704, 77,705 (Dec. 27, 2006) (“Proposed Endangered Status”). Right whales are so named because, historically, they were considered the “right” (correct) whale to hunt due to their close proximity to coastlines, their relatively slow speed, the prized oils they contain, and the large volume of blubber that gives them a tendency to float when dead. Relatively recent population estimates show around 300 remaining right whales. Proposed Endangered Status, 71 Fed. Reg. at 77,705. Ship strikes are “the greatest source of known deaths” of right whales. Proposed Rule, 71 Fed. Reg. at 36,300.
SUMMARY (from Court opinion): This case concerns the North Atlantic right whale (Eubalaena glacialis) (“right whale”) and the role of National Marine Fisheries Service (“NMFS”) and the Coast Guard in the federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. We affirm the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reverse its summary judgment order relating to the Coast Guard’s actions.
FACTUAL BACKGROUND RE: NOAA: (Excerpted): On June 1, 2004, NMFS issued an Advance Notice of Proposed Rulemaking requesting comments on proposed regulations that aim to reduce the likelihood of right whale ship strike mortalities. Advance Notice of Proposed Rulemaking (ANPR) for Right Whale Ship Strike Reduction, 69 Fed. Reg. 30,857 (June 1, 2004) (“ANPR”). The agency noted that despite its efforts to notify mariners of right whale sightings and ship strikes, impose mandatory ship reporting systems, collaborate with the Coast Guard, and take other measures, “right whales continue to be killed as a result of collisions with vessels.” Id. at 30,858. Because of these failings, the agency recognized “that this complex problem requires additional, more pro-active measures to reduce or eliminate the threat of ship strikes to right whales.” Id. ... The agency proposed, inter alia, to impose speed limits on vessels 65 feet and longer traveling in areas when right whales are present in significant numbers, and invited comments on its proposal. Id. at 30,858, 30,861. ... On May 19, 2005, Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy, and others submitted a petition for emergency rulemaking to NMFS pursuant to 5 U.S.C. § 553(e). Petition for Initiation of Emergency Rulemaking To Prevent the Extinction of the North Atlantic Right Whale to the Secretary of Commerce... The petition, among other things, requested “emergency regulations hatrequire all ships entering and leaving all major East Coast ports to travel at speeds of 12 knots or less within 25 nautical miles of port entrances during expected right whale high use periods.” ... Just over six months after the petitioners requested an emergency rule, NMFS published its denial. Petition To Initiate Emergency Rulemaking To Prevent the Extinction of the North Atlantic Right Whale; Final Determination, 70 Fed. Reg. 56,884 (Sept. 29, 2005) (“Denial of Emergency Rulemaking Petition”).
FACTUAL BACKGROUND RE: COAST GUARD: At the same time the petitioners were pursuing an emergency rulemaking petition with NMFS, Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy, and Regina Asmutis-Silvia (together, “appellants”) were challenging the Coast Guard about a series of purported omissions regarding its duties under the Endangered Species Act. On November 3, 2005, appellants sent a 60-day notice letter to the Coast Guard pursuant to the citizensuit provision in the ESA, 16 U.S.C. § 1540(g), notifying the agency that it was violating ESA section 7(a)(2), 16 U.S.C. § 1536(a)(2), by failing to consult with NMFS about the impact its regulation of commercial shipping has on right whales, “and therefore failing to insure that this vessel traffic is not likely to jeopardize the continued existence of the species” and its habitat. Am. Compl. ¶¶ 71, 72. The letter also maintained that the Coast Guard was violating its ESA section 7(a)(1), 16 U.S.C. § 1536(a)(1), obligation “to carry out programs for the conservation of the right whale.”
RULING RE: NOAA's DENIAL OF EMERGENCY PETITION: We begin by noting that “an agency’s refusal to institute rulemaking proceedings is at the high end of the range” of levels of deference we give to agency action under our “arbitrary and capricious” review. Am. Horse Prot. Ass’n, 812 F.2d at 4–5. ... Although “ is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking,” WWHT, Inc. v. FCC, 656 F.2d at 818, such circumstances do arise. In Geller v. FCC, 610 F.2d 973 (D.C. Cir. 1979), we reversed an agency’s refusal to initiate rulemaking proceedings because an “agency cannot sidestep a reexamination of particular regulations when abnormal circumstances make that choice imperative.” Id. at 979. . . . However, this case presents no “abnormal circumstances” like those found in Geller when a newly enacted law removed the sole basis for the regulations at issue, but the agency refused to either terminate the regulations or show that they continued to have a basis in law. See 610 F.2d at 979–80. And unlike American Horse Protection Association, petitioners failed to present new evidence “strongly” suggesting that the agency was unaware of its congressional mandate to protect the right whales. See 812 F.2d at 7. To the contrary, NMFS was well aware of its mandate to protect right whales and was pursuing it by initiating a full notice-and-comment rulemaking on speed restrictions that would potentially be even lower than the ones proposed by petitioners. ANPR, 69 Fed. Reg. at 30,859 (predicting that proposed speed restrictions would “be in the range of 10–14 knots”). The explanations presented in the agency’s denial represented reasoned decisionmaking. The agency’s prediction that an emergency rule would detract agency resources from the promulgation of a final, comprehensive rule is based on facts found in the record. At the time of the denial of the petition for emergency rulemaking, NMFS was holding public meetings on the ANPR and preparing a draft environmental impact statement on proposed vessel speed restriction measures.
RULING RE: COAST GUARD CONSULTATION: Appellants’ second claim is directed against the Coast Guard and its purported omissions while engaged in the process by which it promulgates, enforces, and alters vessel routing measures that coincide with right whale habitat. ... The Ports and Waterways Safety Act requires the Coast Guard to “designate necessary fairways and traffic separation schemes” to provide safe routes for boats traveling in and out of U.S. ports and other places subject to U.S. jurisdiction. 33 U.S.C. § 1223(c)(1). Traffic separation schemes (“TSSs”) are similar to the markings on paved roads—they are “aimed at the separation of opposing streams of traffic ... Prior to designating a traffic separation scheme, the Coast Guard must, inter alia, (1) undertake a study, which the Coast Guard calls a port access route study (“PARS”), and publish notice of it in the Federal Register, id. § 1223(c)(3)(A); (2) “take into account all other uses of the area under consideration,” in consultation with the Secretary of Commerce and others, id. § 1223(c)(3)(B); and (3) “to the extent practicable, reconcile the need for safe access routes with the needs of all other reasonable uses of the area involved,” id. § 1223(c)(3)(C). . . . Appellants challenge the Coast Guard’s actions regarding the traffic separation scheme process as violations of ESA sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538. The district court dismissed this challenge, concluding that the International Maritime Organization, a multinational body, adopted the traffic separation schemes at issue, not the Coast Guard. Defenders of Wildlife, 484 F. Supp. 2d at 55. Because the district court held that there was no final agency action, the court concluded that it lacked jurisdiction to consider appellants’ claims against the Coast Guard. Id. at 55–56. . . By giving the Coast Guard authority to promulgate traffic separation schemes, Congress intended to make the Coast Guard accountable for them. See 33 U.S.C. § 1223(c)(1). Were we to hold that the Coast Guard had delegated its duties under the Ports and Waterways Safety Act to the International Maritime Organization, and that this delegation relieved the Coast Guard of any responsibility for the final action, we would countermine this intent. Such an outcome would also undermine several other statutes that Congress enacted to give parties the ability to challenge unlawful agency action. A party harmed by the Coast Guard’s failure to take into account “the safety and security of United States ports and waterways,” 33 U.S.C. § 1224(a), or the “economic impact and effects,” id. § 1224(a)(7), of traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. §1540(g), or the Administrative Procedure Act.
OTHER RESOURCES from NOAA, from IFAW, and