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Defenders of Wildlife v. Gutierrez

April 5, 2007

DEFENDERS OF WILDLIFE, ET AL., PLAINTIFFS,
v.
CARLOS GUTIERREZ, SECRETARY OF THE DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on cross motions for summary judgment.*fn1 The Court heard oral argument on these motions on March 16, 2007. On March 30, 2007, the Court entered an Order and Judgment granting defendants' motion for summary judgment and denying plaintiffs' motion for summary judgment. This Opinion explains the reasoning underlying that Order.

Plaintiffs Defenders of Wildlife, the Humane Society of the United States, the Ocean Conservancy, and Regina Asmutis-Silva brought this action against defendants Carlos Gutierrez, the Secretary of the Department of Commerce; William T. Hogarth, the Assistant Administrator for Fisheries; Michael Chertoff, the Secretary of the Department of Homeland Security; and Thomas H. Collins, the Commandant of the United States Coast Guard, seeking to protect the endangered North Atlantic right whale ("right whale") (Eubalaena glacialis). Plaintiffs bring suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.; the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.; the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq.; and the Ports and Waterways Safety Act ("PWSA"), 33 U.S.C. § 1221.

Plaintiffs assert two claims in their amended complaint, seeking declaratory and injunctive relief. First, plaintiffs seek judicial review of the denial of their rulemaking petition by the National Oceanic and Atmospheric Administration ("NOAA"). Plaintiffs submitted a formal rulemaking petition under the ESA and the MMPA to the National Marine Fisheries Service ("NMFS") (within NOAA) in May 2005, seeking emergency regulations to reduce the risk of ships striking the North Atlantic right whale. Second, plaintiffs contend that the Coast Guard, a division of the Department of Homeland Security, is violating the ESA and the APA by failing to consult with NMFS "regarding activities undertaken and authorized by the Coast Guard which may affect North Atlantic right whales or modify [their] critical habitat," by "failing to use its authorities to protect and recover" the right whale, and by requiring commercial vessels to travel within traffic separation schemes ("TSS") inhabited by North Atlantic right whales. Amended Complaint ("Am. Compl.") ¶¶ 79-81.

I. BACKGROUND

"The right whale is the most endangered of all large whale species. A baleen whale, it has a thick body and a huge head that accounts for about one-third of its length. Adults range between 45 and 55 feet in length and weigh up to 70 tons. It has distinctive callosities on the head. Right whales were once abundant throughout the Pacific and Atlantic. Prized for their oil and easy to catch, commercial whaling during the nineteenth century decimated the species. By 1935, they were so near extinction that the League of Nations convinced the whaling nations to stop hunting them[.]" Center for Biological Diversity v. Evans, 2005 WL 1514102, at *1 (N.D.Cal. June 14, 2005) (discussing the North Pacific right whale).

There is no dispute between the parties with respect to the current status of the North Atlantic right whale -- it is in peril. See Defs' Mem. at 12; Pls' Mem. at 1. The North Atlantic right whale has been listed as an endangered species since 1970 -- longer than the ESA itself has been in effect. See 50 C.F.R. 17.11; see also Am. Compl. ¶ 41. As NMFS has recognized, each death of a North Atlantic right whale affects the long term prospects of the entire species.*fn2

There also is no dispute that "right whale recovery efforts continue to be adversely affected by ship collisions." Defs' Mem. at 14; see also Pls' Mem. at 1. As the defendants explain:

Right whales are migratory animals and seasonal movements are observed between the spring and summer feeding grounds off the coast of Massachusetts and the winter calving grounds off the coasts of Georgia and Florida. In 1994, NMFS designated critical habitat for the right whale in the Great South Channel, Cape Cod Bay, and in the coastal waters off Georgia and Florida. Right whale critical habitat and distribution tend to coincide with several major shipping corridors on the eastern U.S. and southeastern Canadian coasts. Accordingly, mortality due to entanglements in fishing gear and collisions with ships are the two most significant human-caused threats to right whales of the modern era.

Defs' Mem. at 13 (emphasis added) (citations omitted). NMFS has issued a recovery plan for the right whale. It has been updated numerous times, most recently in 2005. See 70 Fed. Reg. 32,293 (June 2, 2005) (stating that it is the "final revision"). Several aspects of the recovery plan have been implemented. See Defs' Mem. at 13-14. NMFS worked with the Coast Guard to formulate a draft strategy to reduce ship strikes to the extent practicable while minimizing the adverse impact on ship operations, detailed in an Advance Notice of Proposed Rulemaking. See 69 Fed. Reg. 30,857 (June 1, 2004).*fn3 NMFS requested, and received, public comment on the ANPR, and has held a number of public hearings. See Defs' Mem. at 15. NMFS also issued a Notice of Intent to Prepare an Environmental Impact Statement Pursuant to the National Environmental Policy Act ("NEPA"). See 70 Fed. Reg. 36121 (June 22, 2005), NMFS AR 12 at BN 152.*fn4

Section 2.1 of the draft Environmental Assessment of the North Atlantic right whale ship strike reduction strategy recognizes that the failure to take regulatory operational measures thereunder would "not fulfill [NMFS's] mandate to protect the endangered North Atlantic right whale" under the ESA and the MMPA. NMFS AR 11 at BN 54; see also NMFS AR 11 at BN 134 (stating that failure to take the proposed action under the ship strike reduction strategy would lead to non-compliance with the MMPA and the ESA).

To accomplish the Congressional directive in the Coast Guard and Maritime Transportation Act of 2004, the Coast Guard utilized its Port Access Route Study ("PARS") process. See Defs' Mem. at 16; see also 71 Fed. Reg. 29,876. The Coast Guard announced its completion of a PARS and requested comments on May 24, 2006. See 71 Fed. Reg. 29,876. The PARS recommendations include the following:

1. Establish precautionary areas at the entrance to the ports of Jacksonville and Fernandina Beach, FL, and Brunswick, GA.

2. Establish six, two-way routes for the ports of Jacksonville and Fernandina Beach, FL, and Brunswick, GA.

3. Establish precautionary areas at the entrance to Cape Cod Canal and in the vicinity of New Inlet, MA.

4. Establish three, two-way routes in Cape Cod Bay to the ports of Boston and Provincetown, MA, and the ...


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