Defenders of Wildlife v. Gutierrez
| Decision Date | 18 July 2008 |
| Docket Number | No. 07-5278.,07-5278. |
| Parties | DEFENDERS OF WILDLIFE, et al., Appellants v. Carlos GUTIERREZ, Secretary, Department of Commerce, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 05cv02191).
Howard M. Crystal argued the cause for appellants. With him on the brief was Eric R. Glitzenstein.
Sambhav N. Sankar, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Andrew C. Mergen, Attorney.
Before: SENTELLE, Chief Judge, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
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. We remand to the district court for further proceedings.
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. U.S. Army Research Office, Endangered Species Act Biological Assessment for the U.S. Atlantic Coast, at 3-2 (Aug. 1, 1995) ("Biological Assessment"). By the early twentieth century, the right whale population was so depleted that both the League of Nations (in 1935) and the International Whaling Commission (in 1949) banned all whaling of them. NMFS, Final Environmental Impact Statement for Amending the Atlantic Large Whale Take Reduction Plan: Broad-Based Gear Modifications, Vol. I, at 9-6 & n. 2 (Aug.2007), available at NOAA Fisheries Service: 2007 Final ALWTRP Modifications, http:// www.nero.noaa.gov/nero/hotnews/whalesfr (follow "9.0 Cumulative Effects Analysis" hyperlink) (last visited June 30, 2008).
Relatively recent population estimates show around 300 remaining right whales. Proposed Endangered Status, 71 Fed.Reg. at 77,705. The population does not reproduce rapidly; females are not mature reproductively until they reach the age of eight and even then reproduce at a rate of one calf every four years. Biological Assessment, at 3-6 to 3-7. Recent estimates show a mortality rate of at least four percent per year, which, combined with the low birth rate and already low population levels, "mak[e] it one of the most critically endangered large whale species in the world." Proposed Rule To Implement Speed Restrictions To Reduce the Threat of Ship Collisions with North Atlantic Right Whales, 71 Fed.Reg. 36,299, 36,300 (June 26, 2006) ("Proposed Rule"). Right whales were first listed as "endangered" under the Endangered Species Conservation Act of 1969, Pub.L. No. 91-135, 83 Stat. 275, the precursor to the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531 et seq., which is the Act under which they are now listed. See 50 C.F.R. § 17.11 (); see also 35 Fed.Reg. 8491, 8495 (June 2, 1970) (). Right whales are also listed as "depleted" under the Marine Mammal Protection Act of 1972 ("MMPA"), 16 U.S.C. § 1361 et seq. See 38 Fed.Reg. 20,564, 20,570 (Aug. 1, 1973) ().
Right whales are migratory mammals. They generally spend spring, summer, and fall in New England waters near Massachusetts, Rhode Island, and Maine, but some whales have been spotted as far north as Greenland. Proposed Endangered Status, 71 Fed.Reg. at 77,705. Their only known wintering location is along the southeastern U.S. coastline near Georgia and Florida, which is where some females go to calve. Id. National Marine Fisheries Service designated these areas — the Great South Channel east of Cape Cod, Cape Cod and Massachusetts Bays, and the southeastern United States off the coasts of southern Georgia and northern Florida — as right whale "critical habitat." 50 C.F.R. § 226.203 (); see 16 U.S.C. § 1533(a)(3)(A) (); id. § 1532(5)(A) (defining "critical habitat").
Some of the areas labeled by NMFS as "critical habitat" for right whales are dense with shipping traffic. See Right Whale Ship Strike Reduction Strategy Notice of Intent To Prepare an Environmental Impact Statement and Conduct Public Scoping, 70 Fed.Reg. 36,121, 36,121 (June 22, 2005) ("Notice of Intent") ("Right whales are located in, or adjacent to, several major shipping corridors on the eastern U.S. and southeastern Canadian coasts."); Proposed Rule, 71 Fed.Reg. at 36,306 (). Ship strikes are "the greatest source of known deaths" of right whales. Proposed Rule, 71 Fed.Reg. at 36,300. They "are responsible for over 50 percent of known human-related right whale mortalities and are considered one of the principal causes for the lack of recovery in [the right whale population]." Notice of Intent, 70 Fed.Reg. at 36,121.
There are two primary agencies whose actions appellants challenge in this case. The first agency is National Marine Fisheries Service, which is an arm of the National Oceanic and Atmospheric Administration, which, in turn, falls within the Commerce Department. NMFS is one of the agencies to which the Endangered Species Act and Marine Mammal Protection Act delegate enforcement. See 16 U.S.C. § 1533(a)(1) and id. § 1532(15) (); id. § 1362(12)(A)(i), (B) (). The second agency is the United States Coast Guard, a part of the Department of Homeland Security. The Coast Guard is the main agency responsible for effectuating the Ports and Waterways Safety Act of 1972 ("PWSA"), 33 U.S.C. § 1221 et seq., under which it has the duty to designate vessel routing measures "to provide safe access routes for the movement of vessel traffic" coming in and out of ports, id. § 1223(c)(1).
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. Without additional measures, the agency noted that "[r]ecent modeling exercises suggest that if current trends continue, the population could go extinct in less than 200 years" and that "the loss of even a single individual may contribute to the extinction of the species...." Id. It further noted that "according to the models, preventing the mortality of one adult female a year alters the projected outcome." 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 Administrator of the National Oceanic and Atmospheric Administration, and the Assistant Administrator for Fisheries at NMFS (May 19, 2005) ("Emergency Rulemaking Petition"); see 5 U.S.C. § 553(e) (). The petition, among other things, requested "emergency regulations [that] require 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." Emergency Rulemaking Petition, at 3-4. 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").
At the same time the petitioners were...
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