Case 4:22-cv-00117-KAW Document 1 Filed 01/09/22 Page 1 of 27
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`Catherine Kilduff (CA Bar No. 256331)
`Kristen Monsell (CA Bar No. 304793)
`Miyoko Sakashita (CA Bar No. 239639)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, St. #800
`Oakland, CA 94612
`Phone: (510) 844-7100
`Facsimile: (510) 844-7150
`ckilduff@biologicaldiversity.org
`kmonsell@biologicaldiversity.org
`miyoko@biologicaldiversity.org
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`Attorneys for Plaintiff Center for Biological Diversity
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`Plaintiff,
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`UNITED STATES DISTRICT COURT FOR THE
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`NORTHERN DISTRICT OF CALIFORNIA
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` Case No. 22-
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`COMPLAINT FOR DECLARATORY AND
`OTHER RELIEF
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`CENTER FOR BIOLOGICAL DIVERSITY,
`a non-profit organization,
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`GINA RAIMONDO, Secretary of Commerce,
`and NATIONAL MARINE FISHERIES
`SERVICE,
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`Defendants.
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`Case 4:22-cv-00117-KAW Document 1 Filed 01/09/22 Page 2 of 27
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`INTRODUCTION
`Plaintiff Center for Biological Diversity brings this action under the Endangered
`1.
`Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, and the Marine Mammal Protection Act
`(“MMPA”), 16 U.S.C. §§ 1361-1423h, against the Secretary of Commerce Gina Raimondo and
`the National Marine Fisheries Service (collectively, “the Fisheries Service”) for failing to ensure
`that commercial fisheries do not jeopardize the continued existence of, or cause more than a
`negligible impact to, threatened and endangered humpback whales. Specifically, Plaintiff
`challenges Defendants’ unlawful authorizations under the ESA and MMPA to take humpback
`whales in the Washington/Oregon/California sablefish pot fishery (“Pot Fishery”). Id.
`§§ 1536(a)(2), 1371(a)(5)(E).
`2.
` Entanglement in commercial fishing gear is one of the primary threats to the
`recovery of imperiled humpback whales. The most recent annual estimates of mortality and
`serious injury of humpback whales off California, Oregon, and Washington are 48.6 from human
`activities, of which at least 25.2 are from fisheries. This represents a 400 percent increase in
`humpback whale mortality and serious injury from human activities since 2018 estimates.
`3.
`The Pot Fishery entangles humpback whales. When humpback whales get tangled
`in sablefish pot gear, they can drown or die of starvation or infection. The lines can wrap around a
`whale, sometimes anchoring the whale in place and drowning or severely injuring it. Other times
`the whale swims away with the gear dragging behind it, causing painful constrictions of the rope
`and sapping the whale’s energy.
`4.
`Sablefish pots sit on the bottom of the ocean and are connected to each other in
`approximately two-mile-long strings of 15 to 50 pots. Each of the string’s ends is connected to a
`vertical line to a surface buoy. The gear sometimes soaks for long periods.
`5.
`Despite the nearly 50 humpback whales annually killed or seriously injured by
`human activities off the U.S. West Coast, the Fisheries Service has not issued regulations to
`reduce humpback whale mortality and serious injury from either of the primary threats –
`commercial fishing or vessel strikes – since the listing of the Central America distinct population
`segment (“DPS”) and the threatened Mexico DPS under the ESA in 2016.
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`The Fisheries Service’s authorization, permitting, oversight, and management of
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`the Pot Fishery has caused, and will likely continue to cause, the death and injury of threatened
`and endangered humpback whales.
`7.
`In October 2020 Defendants issued an inadequate biological opinion that failed to
`comply with the ESA and the Administrative Procedure Act. Specifically, the 2020 Biological
`Opinion failed to include the best available science. 16 U.S.C. § 1536(a)(2), (b)(4)(C)(iii).
`8.
`The Fisheries Service’s continued authorization and management of the Pot
`Fishery in reliance on the fundamentally flawed 2020 Biological Opinion violates the agency’s
`substantive duty under Section 7 of the ESA to ensure that the actions it authorizes are not likely
`to jeopardize the continued existence of humpback whales. 16 U.S.C. § 1536(a)(2).
`9.
`On December 8, 2021, the Fisheries Service unlawfully issued a MMPA permit for
`the taking of threatened and endangered humpback whales in the Pot Fishery (“2021 Permit”). 86
`Fed. Reg. 69,627 (Dec. 8, 2021). The 2021 Permit is based on a faulty negligible impact
`determination that failed to consider fishing gear mortality other than that which is attributable to
`the Pot Fishery, and arbitrarily failed to base its determination on the most recent scientific
`information regarding humpback whale populations. Further, the Fisheries Service issued the
`2021 Permit without developing or having completed a take reduction plan, which is a pre-
`requisite for issuance of such permits. 16 U.S.C. §1371(a)(5)(E).
`10. Accordingly, Plaintiff seeks a declaration that Defendants’ 2020 Biological
`Opinion violates the ESA and that Defendants’ 2021 Permit violates the MMPA. Plaintiff also
`seeks mitigation measures to protect humpback whales from further unlawful death, injury, and
`other harm due to Defendants’ illegal actions and omissions.
`JURISDICTION, VENUE, and INTRADISTRICT ASSIGNMENT
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
`11.
`question); 28 U.S.C. § 1346 (action against the United States); 28 U.S.C. § 1361 (action to
`compel an officer of the United States to perform his or her duty); 28 U.S.C. §§ 2201-02 (power
`to issue declaratory judgments and grant relief in cases of actual controversy); 16 U.S.C.
`§ 1540(g) (ESA citizen suit provision); and 5 U.S.C. § 702 (Administrative Procedure Act).
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`Plaintiff provided Defendants with notice of Plaintiff’s intent to sue over the ESA
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`violations alleged in this Complaint more than 60 days ago. Defendants have not remedied these
`violations of law.
`13. Venue is proper in the Northern District of California pursuant to 16 U.S.C.
`§ 1540(g)(3)(A) because the ESA violations are occurring in this district and pursuant to 28
`U.S.C. § 1391(b) because a substantial part of the events giving rise to the claims occurred here.
`14.
`Pursuant to Civil Local Rule 3-2(c) and 3-2(d), the appropriate intradistrict
`assignment of this case is either to the San Francisco Division or the Oakland Division.
`PARTIES
`Plaintiff
`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the “Center”) is a national
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`nonprofit conservation organization that works through science, law, and policy to secure a future
`for all species, great or small, hovering on the brink of extinction. The Center is dedicated to the
`preservation, protection, and restoration of biodiversity and ecosystems throughout the world.
`The Center has more than 89,600 members.
`16.
`The Center’s Oceans Program focuses specifically on conserving marine
`ecosystems and seeks to ensure that imperiled species are properly protected from destructive
`practices in our oceans. In pursuit of this mission, the Center has been actively involved in
`securing ESA protections for imperiled marine mammals and protecting whales and other wildlife
`from deadly and harmful entanglement in commercial fishing gear.
`17. Center members live in and regularly visit ocean waters, bays, beaches, and other
`coastal areas to observe, photograph, study and otherwise enjoy humpback whales and their
`habitat. Center members have an interest in whales, marine mammals, and other wildlife and their
`Pacific Ocean habitat; including waters off California, Oregon, and Washington. For example,
`Center members frequently sail, kayak, and go on humpback whale-watching tours in Gulf of the
`Farallones, Half Moon Bay, Monterey Bay, and the Santa Barbara Channel to look for and
`photograph humpback whales and other wildlife. Center members derive recreational, spiritual,
`professional, scientific, educational, and aesthetic benefit from the presence of humpback whales,
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`and their habitat. One Center member took her young daughter whale watching in Monterey Bay
`in September 2021 and saw many humpbacks. She enjoyed her trip but felt sad to see multiple
`humpbacks with entanglement scars. She and other Center members intend to continue to use and
`enjoy the habitat of humpback whales frequently and on an ongoing basis in the future.
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`Entanglements of humpback whales in the Pot Fishery kills and harms animals that
`18.
`Center members enjoy viewing. The Fisheries Service’s failure to comply with the ESA makes it
`less likely that Center members will be able to observe, study, and enjoy these animals.
`Additionally, Center members reasonably fear that they will see a humpback whale entangled in
`fishing gear when recreating and visiting California’s beaches and ocean waters.
`19. An integral aspect of the Center’s members’ use and enjoyment of humpback
`whales is the expectation and knowledge that the species are in their native habitat. For this
`reason, the Center’s members’ use and enjoyment of humpback whales is entirely dependent on
`the continued existence of healthy, sustainable populations in the habitat off the Pacific Coast.
`The Fisheries Service’s failure to comply with applicable environmental laws deprives humpback
`whales of statutory protections that are vitally important to the species’ survival and eventual
`recovery. The Fisheries Service’s failure to prepare an adequate biological opinion under the ESA
`diminishes the aesthetic, recreational, spiritual, scientific, and other interests of the Center and its
`members because humpback whales are more vulnerable to harm and less likely recover absent
`the protections that result from those actions. The Center and its members are therefore injured
`because the Center’s use and enjoyment of the humpback whales, and those areas inhabited by
`them, are threatened by the Fisheries Service’s ongoing authorization of the Pot Fishery without
`compliance with environmental law.
`20.
`The Center’s members’ above-described cultural, spiritual, aesthetic, recreational,
`scientific, educational, and other interests have been, are being and, unless the relief prayed herein
`is granted, will continue to be adversely affected and irreparably injured by the Fisheries Service’s
`continued refusal to comply with obligations under the ESA, the MMPA, and other laws. The
`relief sought in this case will redress these injuries.
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`In addition, the Center’s members regularly comment on agency actions that affect
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`wildlife off California and the West Coast, including humpback whales, and regularly comment
`on and participate in the Fisheries Service’s decisions affecting threatened and endangered
`species. Rules regarding fishing, the management of national marine sanctuaries, and offshore
`energy development all have the potential to impact humpback whales. The Fisheries Service’s
`failure to comply with the ESA and MMPA, specifically by failing to use the best available
`science, ensure against jeopardy, and adequately assess the impact of the Pot Fishery, deprives
`them of these rights to understand and comment on agency activities’ impacts on humpback
`whales, and causes them informational injuries that would be redressed by a favorable decision.
`Defendants
`Defendant GINA RAIMONDO, U.S. Secretary of Commerce, is the highest-
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`ranking official within the Department of Commerce and, in that capacity, has responsibility for
`its administration and implementation of the ESA and for compliance with all other federal laws
`applicable to the Department of Commerce. She is sued in her official capacity.
`23.
`Defendant NATIONAL MARINE FISHERIES SERVICE is an agency within the
`Department of Commerce. The National Marine Fisheries Service is the agency which
`implements the ESA and the MMPA.
`LEGAL BACKGROUND
`Endangered Species Act
`24. With the ESA, Congress intended endangered species to be afforded the highest of
`priorities. The ESA’s purpose is “to provide a means whereby the ecosystems upon which
`endangered species and threatened species depend may be conserved, [and] to provide a program
`for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b).
`25. Under the ESA, conservation means “to use and the use of all methods and
`procedures which are necessary to bring any endangered species or threatened species to the point
`at which the measures provided pursuant to this chapter are no longer necessary.” Id. § 1532(3).
`26.
`Section 7(a)(2), 16 U.S.C. § 1536(a)(2), is a critical component of the statutory and
`regulatory scheme to conserve endangered and threatened species. It requires that every federal
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`agency must determine whether its actions “may affect” any endangered or threatened species. If
`so, the action agency must formally consult with the Fisheries Service as part of its duty to “insure
`that [its] action is . . . not likely to jeopardize the continued existence” of that species. Id.
`§ 1536(a)(1), (2); 50 C.F.R. § 402.14 (2019). The term “jeopardize” is defined as an action that
`“reasonably would be expected . . . to reduce appreciably the likelihood of both the survival and
`recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of
`that species.” 50 C.F.R. § 402.02 (2019).
`27. At the completion of formal consultation, the Fisheries Service will issue a
`biological opinion that determines if the agency action is likely to jeopardize the species. 16
`U.S.C. §1536(b)(3)-(4); 50 C.F.R. § 402.14(h). In formulating the biological opinion, the
`Fisheries Service must use only “the best scientific and commercial data available.” 16 U.S.C.
`§ 1536(a)(2).
`The biological opinion must include a summary of the information upon which the
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`opinion is based, an evaluation of the “current status of the listed species,” the “effects of the
`action,” and the “cumulative effects.” 50 C.F.R. § 402.14(g)(2), (g)(3).
`29.
`“Effects of the action” include both direct and indirect effects of an action “that
`will be added to the environmental baseline.” Id. § 402.02. The “environmental baseline” includes
`“the past and present impacts of all Federal, State, or private actions and other human activities in
`the action area, the anticipated impacts of all proposed Federal projects in the action area that
`have already undergone formal or early section 7 consultation, and the impact of State or private
`actions which are contemporaneous with the consultation in process.” Id. “Cumulative effects”
`include “future State or private activities, not involving Federal activities, that are reasonably
`certain to occur within the action area.” Id.
`30.
`Thus, in issuing a biological opinion, the Fisheries Service must consider not just
`the isolated share of responsibility for impacts to the species traceable to the activity that is the
`subject of the biological opinion, but also the effects of that action when added to all other
`activities and influences that affect the status of that species.
`31. After the Fisheries Service has added the direct and indirect effects of the action to
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`the environmental baseline and cumulative effects, it must make its determination of “whether the
`action is likely to jeopardize the continued existence of a listed species.” 16 U.S.C. § 1536(b)(3),
`(b)(4); 50 C.F.R. § 402.14(h). A likelihood of jeopardy is found when “an action [] reasonably
`would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival
`and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution
`of that species.” 50 C.F.R. § 402.02. Recovery is defined as “improvement in the status of listed
`species to the point at which listing is no longer appropriate.” Id.
`32. A biological opinion that concludes that the agency action is not likely to
`jeopardize the continued existence of a listed species but will result in take incidental to the
`agency action must include an incidental take statement. 16 U.S.C. § 1536(b)(4).
`33.
`The incidental take statement must specify the amount or extent of incidental
`taking on such listed species, “reasonable and prudent measures” that the Fisheries Service
`considers necessary or appropriate to minimize such impact and set forth “terms and conditions”
`that must be complied with by the action agency to implement the reasonable and prudent
`measures. Id.; 50 C.F.R. § 402.14(i). Additionally, when the listed species to be incidentally taken
`are marine mammals, the take must first be authorized by the Fisheries Service pursuant to the
`MMPA, and the incidental take statement must include any additional measures necessary to
`comply with the MMPA take authorization. Id.
`34.
`The ESA generally prohibits any person, including both private persons and
`federal agencies, from “taking” any endangered species, such as, in this case, humpback whales.
`16 U.S.C. § 1538(a)(1). The term “take” is defined by the ESA to mean “harass, harm, pursue,
`hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Id.
`§ 1532(19). The take of a listed species in compliance with the terms of a valid incidental take
`statement is not prohibited under section 9 of the ESA. Id. § 1536(b)(4), (o)(2); 50 C.F.R.
`§ 402.14(i)(5).
`35.
`If the Fisheries Service determines in its biological opinion that the action is likely
`to jeopardize the continued existence of a listed species, the biological opinion must include
`“reasonable and prudent alternatives” to the action that will avoid jeopardy. 16 U.S.C.
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`§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3).
`36. Regardless of the conclusion reached in the biological opinion, the agency
`undertaking the federal action has an independent duty to ensure that its actions are not likely to
`jeopardize the continued existence of listed species. 16 U.S.C. § 1536(a)(2). An agency’s reliance
`on a legally flawed biological opinion to authorize an action does not satisfy its substantive duty
`to ensure against jeopardy.
`37.
`The ESA specifies that Section 7 consultation must typically be completed within
`ninety days after initiation. 16 U.S.C. § 1536(b)(1); 50 C.F.R. § 402.14(e). The substantive duty
`to ensure against jeopardy of listed species remains in effect regardless of the status of the
`consultation.
`The ESA defines the term “species” to include “any distinct population segment of
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`any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16).
`39.
`The Central America distinct population segment of humpback whales is listed as
`endangered under the ESA, 50 C.F.R. § 224.101 (2016), and the Mexico distinct population
`segment of humpback whales is listed as threatened, id. § 223.102 (2016). The prohibition on the
`take of endangered species under the ESA applies to the threatened Mexico humpback whales. Id.
`§ 223.213 (2016).
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`Marine Mammal Protection Act
`40. Congress enacted the MMPA in 1972 in response to widespread concern that large
`numbers of marine mammals were being killed through interactions with commercial fisheries.
`Congress found that “certain species and population stocks of marine mammals are, or may be, in
`danger of extinction or depletion as a result of man’s activities.” 16 U.S.C. § 1361(1). The policy
`behind the MMPA is that “such species and population stocks should not be permitted to diminish
`beyond the point at which they cease to be a significant functioning element in the ecosystem of
`which they are a part, and, consistent with this major objective, they should not be permitted to
`diminish below their optimum sustainable population.” Id. § 1361(2).
`41.
`The primary mechanism by which the MMPA protects marine mammals is through
`the implementation of a moratorium on the take of marine mammals. Id. § 1371(a). “Take” is
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`defined broadly by the MMPA to mean “to harass, hunt, capture, or kill, or attempt to harass,
`hunt, capture or kill any marine mammal.” Id. § 1362(13).
`42.
`In addition, the MMPA requires the Fisheries Service to prepare a “stock
`assessment” for each marine mammal population in U.S. waters, documenting the population’s
`abundance and trend, describing the fisheries that interact with the stock, and estimating the level
`of “mortality and serious injury” caused by those fisheries each year. 16 U.S.C. § 1386(a). The
`Fisheries Service defines “serious injury” as “any injury that will likely result in mortality.” 50
`C.F.R. § 229.2 (1995). The MMPA requires the Fisheries Service to review stock assessments at
`least annually for stocks which are specified as strategic stocks, like the humpback whale, and
`revise the stock assessment if the status of the stock has changed or can be more accurately
`determined. 16 U.S.C. § 1386(c).
`43. Based on the stock assessment, the agency must estimate the “potential biological
`removal” (“PBR”) level for each stock, id. § 1386(a), defined as the maximum number animals,
`not including natural mortalities, that may be removed from a marine mammal stock while
`allowing that stock to reach or maintain its optimum sustainable population. Id. § 1362(20).
`44. The MMPA also requires that the Fisheries Service annually publish a list of
`commercial fisheries, classifying each fishery as a Category I, II, or III fishery. Id. § 1387(c)(1).
`Category I fisheries are those that cause “frequent incidental taking of marine mammals”;
`Category II fisheries are those that cause “occasional incidental mortality and serious injury of
`marine mammals”; and Category III fisheries are those that have “a remote likelihood of or no
`known incidental mortality or serious injury of marine mammals.” Id
`45.
`The MMPA established a Marine Mammal Commission. Id. § 1401. The duties of
`the Commission include recommending to the Fisheries Service the steps that “it deems necessary
`or desirable for the protection and conservation of marine mammals.” Id. § 1402(a). The MMPA
`requires the Fisheries Service either to adopt the recommendation or respond “with a detailed
`explanation of the reasons why those recommendations were not followed or adopted.” Id.
`§ 1402(d).
`46.
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`The MMPA established regional scientific review groups. Id. § 1386(d). The
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`MMPA states that the scientific review groups shall advise the Fisheries Service on, inter alia,
`“population estimates and the population status and trends” of marine mammal stocks, “research
`needed to identify modifications in fishing gear and practices likely to reduce the incidental
`mortality and serious injury of marine mammals in commercial fishing operations,” and other any
`other issue that the Fisheries Service of the groups consider appropriate. Id.
`47.
`The MMPA defines the term “population stock” or “stock” as “a group of marine
`mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed
`when mature.” Id. § 1362(11). Based on the management objectives of the MMPA, the Fisheries
`Service has determined that stocks should represent demographically independent populations.
`48.
`The Fisheries Service has defined the California/Oregon/Washington stock
`(“CA/OR/WA stock”) to include humpback whales that feed off the U.S. West Coast. Off
`California and Oregon, the feeding group includes whales from the endangered Central America,
`which almost exclusively use this area to feed, and threatened Mexico DPSs. Off Washington and
`southern British Columbia, the feeding group includes primarily threatened Mexico DPS whales,
`with smaller numbers of endangered Central America DPS humpbacks and of unlisted Hawaii
`DPS humpbacks.
`49.
`The Fisheries Service considers the CA/OR/WA stock a “strategic stock” under the
`MMPA because it is listed on the Endangered Species Act. See id. § 1362(19).
`Permitting Commercial Fisheries’ Incidental Take
`The MMPA contains limited exceptions to its broad prohibition on take. Section
`50.
`101(a)(5)(E) of the MMPA allows the Fisheries Service to permit take incidental to commercial
`fishing from marine mammal species or stocks listed as threatened or endangered under the ESA
`only if the Fisheries Service determines that:
`(I) the incidental mortality and serious injury resulting from fishery
`operations will have a negligible impact on such species or stock;
`(II) a recovery plan has been developed or is being developed for such
`species or stock pursuant to the ESA, and
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`(III) a monitoring program is established and a take reduction plan has been
`or is being developed for such species or stock pursuant to 16 U.S.C. § 1387.
`16 U.S.C. § 1371(a)(5)(E).
`51. According to the committee report for the legislation creating this permit, “the
`‘negligible impact’ standard in the MMPA is more stringent than the ‘no jeopardy’ standard in the
`ESA, and consequently provides more protection for endangered or threatened marine mammals
`under the MMPA than under the ESA.” H.R. Rep. No. 103-439 (1994).
`52.
`For fisheries for which the Fisheries Service makes a “negligible impact
`determination” under clause (I) above, “if, during the course of the commercial fishing season, the
`[Fisheries Service] determines that the level of incidental mortality or serious injury . . . has
`resulted or is likely to result in an impact that is more than negligible on the endangered or
`threatened species or stock, the [Fisheries Service] shall use the emergency authority granted
`under section 1387” to prescribe regulations that reduce incidental mortality and serious injury in
`that fishery. 16 U.S.C. §1371(a)(5)(E)(iii).
`Monitoring Program Required by the MMPA
`53. With respect to the monitoring program required under clause (III) of Section
`101(a)(5)(E), the MMPA states that the Fisheries Service “shall establish a program to monitor
`incidental mortality and serious injury of marine mammals during commercial fishing
`operations.” Id. § 1387(d)(1). The program’s purposes “shall be to—(A) obtain statistically
`reliable estimates of incidental mortality and serious injury; (B) determine the reliability of
`reports of incidental mortality and serious injury [submitted by fishermen]; and (C) identify
`changes in fishing methods or technology that may increase or decrease incidental mortality and
`serious injury.” Id.
`54.
`The Fisheries Service may place observers on board vessels as necessary, id. at
`§ 1387(d)(2), and “may establish an alternative observer program to provide statistically reliable
`information on the species and number of marine mammals incidentally taken. . . . [that] may
`include direct observation of fishing activities from vessels, airplanes, or points on shore.” Id. at
`§ 1387(d)(5).
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`Take Reduction Plan
`55. With respect to the take reduction plan required under clause (III) of section
`101(a)(5)(E) to issue authorization of incidental take of ESA-listed marine mammals, the
`Fisheries Service must develop a take reduction plan for each strategic stock that interacts with a
`commercial fishery that the Fisheries Service has identified as causing frequent or occasional
`mortality and serious injury of marine mammals, i.e. Category I and II fisheries, respectively. Id.
`§ 1387(f)(1).
`The Fisheries Service must establish a take reduction team “[a]t the earliest
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`possible time (not later than 30 days) after the Secretary issues a final stock assessment … for a
`strategic stock.” Id. § 1387(f)(6)(A). For any stock in which incidental mortality and serious
`injury from commercial fisheries exceeds the potential biological removal level, “the plan shall
`include measures the Secretary expects will reduce, within 6 months of the plan’s
`implementation, such mortality and serious injury to a level below the potential biological
`removal level.” Id. § 1387(f)(5)(A).
`57. Congress provided strict deadlines for the team to develop a draft plan that the
`Fisheries Service must amend, approve, and implement as necessary to comply with the MMPA.
`Id. § 1387(f)(7), (8).
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`Administrative Procedure Act
`The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-706, provides for
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`judicial review of final agency action. Under the APA, a person may seek judicial review to
`“compel agency action unlawfully withheld or unreasonably delayed. . . .” Id. § 706(1). The APA
`also requires that a reviewing court “hold unlawful and set aside agency action, findings, and
`conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
`accordance with law.” Id. § 706(2)(A).
`FACTUAL AND PROCEDURAL BACKGROUND
`The humpback whale (Megaptera novaeangliae) is an ESA-listed species that has
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`been, and is being, taken by the Fisheries Service’s authorization and management of the Pot
`Fishery.
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`Imperiled Humpback Whales
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`60. Humpback whales were listed as endangered in 1970 under the Endangered
`Species Conservation Act—the precursor to the ESA—and as endangered under the ESA upon its
`enactment in 1973. 35 Fed. Reg. 18,319 (Dec. 2, 1970). Entanglement in fishing gear is the most
`frequently identified source of human-caused injury or mortality to the species.
`61.
`The Fisheries Service reclassified the globally listed humpback whale species into
`14 different distinct population segments (“DPS”) in 2016. 81 Fed. Reg. 62,259 (Sept. 8, 2016).
`Two of those populations are found in waters off California and Oregon: the Central America
`DPS and the Mexico DPS. Id. The Fisheries Service listed the Central America DPS as
`endangered and the Mexico DPS as threatened. Id. at 62,269; 50 C.F.R. § 17.11 (2016).
`62.
`Humpback whales in the Central America DPS generally migrate from their winter
`breeding grounds off Central America to feed almost exclusively off California and Oregon in
`spring and summer. The Fisheries Service determined the Central America DPS is endangered
`based, in part, on the continuing, ongoing threat of entanglement in fishing gear. Vessel strikes
`and entanglement in fishing gear are considered likely to moderately red