Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008).

Terra Bowling, J.D.

The District of Columbia Court of Appeals has ruled that the U.S. Coast Guard is required to consider the impact that the designation of ship routing schemes may have on the endangered North Atlantic right whales.

Background
The North Atlantic right whale is one of the most critically endangered species in the world. The 45-55 foot whales were historically heavily hunted. They became known as “right” whales be­ cause 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.”1 Today, only an estimated 300 remain in the world. The species is listed as endangered under the federal Endangered Species Act (ESA). Although hunting has ceased, recovery has been hampered by the species’ low birthrate and a high mortality rate caused primarily by ship strikes and entanglements in fishing gear.

The right whales spend the spring, summer, and fall in New England waters and migrate to the warmer coastal waters along the southeastern U.S. for the winter. Pursuant to its responsibilities under the ESA, the National Marine Fisheries Service (NMFS) has designated the Great South Channel east of Cape Cod, Cape Cod and Massachusetts Bays, and waters off the coasts of southern Georgia and northern Florida as right whale critical habitat. Unfortunately, some portions of the whales’ critical habitat experience dense shipping traffic.

Litigation
On May 19, 2005, Defenders of Wildlife and several other environmental organizations (Defenders) submitted a petition to NMFS “requesting 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.”2 Simultaneously, Defenders notified the Coast Guard that it intended to sue the agency for failing to consult with NMFS about the impact its regulation of commercial shipping has on the right whale. NMFS denied the petition six months later. The Coast Guard did not respond.

Defenders filed suit against the federal agencies in November 2005. Defenders claimed NMFS’ denial of the emergency rulemaking petition was arbitrary and violated the Administrative Procedures Act and the ESA. Defenders claimed that the Coast Guard was failing to insure that vessel traffic is not likely to jeopardize the continued existence of the right whale and its habitat as mandated by the ESA. The district court granted summary judgment in favor of the federal agencies. Defenders appealed.

Emergency Rulemaking Petition
Defenders argued that NMFS’ denial of the rulemaking petition was arbitrary “in light of the admitted need for ship speed regulations and the agency’s ESA section 7(a)(1) duty to protect right whales through its programming.”3 Noting that it would only overturn an agency decision not to institute rulemaking in “the rarest and most compelling of circumstances,”4 the D.C. Circuit upheld the district court’s grant of summary judgment.

The court found that this case presented no abnormal circumstances that would justify overturning the agency’s decision. NMFS denied the petition on the grounds that a rulemaking on ship strikes was already underway. The agency had issued an Advanced Notice of Proposed Rulemaking (ANPR) in 2004 and was preparing a draft environmental impact statement. At the time, the agency believed this was the best means to implement an effective comprehensive strategy for reducing ship strikes. The court deferred to NMFS’ reasoning that an emergency rulemaking would draw resources and staff time away from the final rule. It makes no difference that, despite the issuance of a proposed ship strike rule in June 2006, NMFS has yet to issue a final rule. The court is “bound on review to the record that was before the agency at the time it made its decision.”5

Traffic Separation Schemes
Congress, through 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 waters.6 When establishing TSSs, the Coast Guard must “take into account all relevant factors concerning . . . protection of the marine environment, . . . including but not limited to . . . environmental factors.”7 In addition, the Coast Guard must comply with other relevant federal laws such as the ESA and the Marine Mammal Protection Act. For example, A7 7(a)(2) of the ESA requires federal agencies, in consultation with the Secretary of Commerce, to ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize endangered or threatened species or their habitats.

Defenders claimed that the Coast Guard’s failure to consult with NMFS with regard to the TSSs in New England and along the southeastern coast violates its duties under the ESA. The Coast Guard argued that § 7 consultation had not been triggered by the designation of the traffic separation schemes in right whale habitat. Its argument was rather ingenious. The Coast Guard claimed that it was simply following the orders of the International Maritime Organization (IMO). Amazingly, the district court bought it and dismissed the Defenders’ claim for lack of jurisdiction. The district court concluded that because the U.S. must submit its recommendations for TSSs to the IMO for adoption on the international level, it was the IMO, not the Coast Guard, who designated the schemes at issue. As such, the Coast Guard had not engaged in any final agency action which could trigger its responsibilities under the ESA.

On appeal, the D.C. Circuit soundly rejected this argument and held “by giving the Coast Guard authority to promulgate traffic separation schemes, Congress intended to make the Coast Guard accountable for them.”8 The IMO is a specialized agency of the United Nations tasked with developing and maintaining a comprehensive regulatory framework for shipping, which it does by facilitating the negotiation and adoption of treaties. Given the international nature of commercial shipping, the court (or legislators) have determined it is reasonable to ask countries to submit their recommendations for shipping routes to the IMO for adoption on the international level. The approval of those recommendations, however, does not provide the IMO with any authority to promulgate regulations in the U.S. Only the Coast Guard has the authority to promulgate regulations governing shipping routes.

The D.C. Circuit found there was ample evidence of final agency action with respect to TSSs. Over the years, the Coast Guard has conducted and published the results of port access route studies, accepted public comments on proposed routes, and ensured that final TSSs appear in the Code of Federal Regulations following adoption by the IMO. The promulgation of a TSS is a final agency action triggering consultation with NMFS under the ESA.

Conclusion
The D.C. Circuit affirmed the district court’s grant of summary judgment with regard to the denial of Defenders’ emergency rulemaking petition. However, because the D.C. Circuit found that the Coast Guard’s designation of traffic separation schemes triggers A77 consultation, the court reversed the district court’s grant of summary judgment and remanded the case for further proceedings.  

Endnotes
1.  Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 914 (D.C. Cir. 2008).
2.  Id. at 916.
3.  Id. at 919.
4.  Id. at 921.
5.  Id. at 919.
6.  33 U.S.C. A7 1223(c)(1).
7.  Id. A7 1224(a)(6).
8.  Defenders of Wildlife, 532 F.3d at 926.