Case 1:20-cv-02047-KBJ Document 1 Filed 07/28/20 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`____________________________________________________
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`NATURAL RESOURCES DEFENSE COUNCIL, INC.,
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`40 West 20th Street
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`New York, NY 10011
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`HEALTHY GULF
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`1010 Common Street, #902
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`New Orleans, LA 70112
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`Plaintiffs,
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`v.
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`Defendants.
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`____________________________________________________ )
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`Case No. 1:20-cv-2047
`ECF Case
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`WILBUR ROSS, in his official capacity
`as Secretary of Commerce,
`United States Department of Commerce
`1401 Constitution Avenue NW
`Washington, DC 20230
`
`CHRIS OLIVER, in his official capacity as
`Assistant Administrator for Fisheries,
`National Marine Fisheries Service
`1315 East-West Highway
`Silver Spring, MD 20910
`
`NATIONAL MARINE FISHERIES SERVICE
`1315 East-West Highway
`Silver Spring, MD 20910
`
`TIMOTHY GALLAUDET, in his official capacity as Assistant
`Secretary of Commerce for Oceans and Atmosphere and as
`Deputy Administrator, National Oceanic and Atmospheric
`Administration
`1401 Constitution Avenue NW, Room 5128
`Washington, DC 20230
`
`NATIONAL OCEANIC AND ATMOSPHERIC
`ADMINISTRATION
`1401 Constitution Ave., NW, Room 5128
`Washington, DC 20230
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`Case 1:20-cv-02047-KBJ Document 1 Filed 07/28/20 Page 2 of 13
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`The Gulf of Mexico whale, a subspecies of Bryde’s whale, Balaenoptera edeni
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`(“Gulf of Mexico whale” or “the species”), is the only baleen whale resident in the Gulf of
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`Mexico and one of the most endangered whales on the planet.
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`2.
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`Although historically the species ranged across the entire Gulf, its population has
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`been restricted to a limited area, with recent sightings confined to the area near De Soto Canyon
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`in the northeastern Gulf. By the government’s estimate only 33 individuals remain in the wild.
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`3.
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`In 2014, the Natural Resources Defense Council (NRDC) filed an Endangered
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`Species Act petition with the National Marine Fisheries Service (NMFS) to list the Gulf of
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`Mexico whale as endangered.
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`4.
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`Congress passed the Endangered Species Act (ESA) in 1973 to protect wildlife
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`like the Gulf of Mexico whale that is in danger of extinction, because such species were
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`recognized to be “of esthetic, ecological, educational, historical, recreational, and scientific value
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`to the Nation and its people.” 16 U.S.C. § 1531(a)(3). To achieve its purpose, the ESA contains a
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`series of nondiscretionary deadlines. For the Gulf of Mexico whale, NMFS failed on two prior
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`occasions to meet the statute’s deadlines—which NRDC had to bring suit to enforce—leading to
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`several years of delay before the species was formally listed as endangered.
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`5.
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`On April 15, 2019, nearly five years after NRDC’s petition was filed, NMFS
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`published a final rule listing the Gulf of Mexico whale as endangered throughout all of its range.
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`84 Fed. Reg. 15,446 (April 15, 2019) (the “Listing Decision”). NMFS stated that the species was
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`endangered “due to its small population size and restricted range, and the threats of energy
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`exploration, development and production, oil spills and oil spill response, vessel collision,
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`fishing gear entanglement, and anthropogenic noise.” Id. at 15,446.
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`6.
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`7.
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`NMFS has now missed a third mandatory deadline.
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`The ESA states the NMFS shall designate critical habitat for an endangered
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`species concurrently with its determination to list the species. 16 U.S.C. § 1533(a)(3)(A)(i),
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`(b)(6)(C). That deadline may be extended by one year. in certain circumstances, but only one
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`extension is allowed. Id. § 1533(b)(6)(C)(ii). The Act thus required NMFS to designate critical
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`habitat for the Gulf of Mexico whale within one year of the date of publication of its listing
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`decision. Id. That deadline is nondiscretionary and cannot be extended further. To date, however,
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`NMFS has not designated critical habitat for the species.
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`8.
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`NMFS’s delayed protection and designation of critical habitat for these whales,
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`harms the species and reduces its odds of survival, and harms Plaintiffs’ interests in the species.
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`This Court should order Defendants to comply with the ESA and designate critical habitat for the
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`Gulf of Mexico whale.
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`JURISDICTION AND VENUE
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`9.
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`The Court has jurisdiction over this action pursuant to 16 U.S.C. § 1540(c) and
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`(g) (ESA citizen suit provision), 5 U.S.C. §§ 701-706 (judicial review of agency action), and 28
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`U.S.C. § 1331 (federal question jurisdiction).
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`10.
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`The relief requested may be granted under 28 U.S.C. §§ 2201-2202 (declaratory
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`and injunctive relief), 16 U.S.C. § 1540(g) (ESA citizen suit provision), and 5 U.S.C. § 706(1)
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`(Administrative Procedure Act).
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`11.
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`Pursuant to 16 U.S.C. § 1540(g)(2)(C), Plaintiffs provided the Secretary of
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`Commerce and all Defendants with written notice of Plaintiffs’ intent to file this suit. That notice
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`was provided more than sixty days prior to the commencement of this action. A copy of
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`Plaintiffs’ notice letter is attached as Exhibit A and incorporated herein by reference.
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`12.
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`Defendants have not corrected their violations of the law in response to Plaintiffs’
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`notice.
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`13.
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`Venue is proper in the United States District Court for the District of Columbia
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`pursuant to 28 U.S.C. § 1391(e), 16 U.S.C. § 1540(g)(3)(A), and 5 U.S.C. § 703, because two
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`Defendants reside in this judicial district and a substantial part of the events or omissions giving
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`rise to the claims occurred in the District of Columbia. Plaintiff NRDC also has an office in
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`Washington, D.C.
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`PARTIES
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`Plaintiffs
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`14.
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`Plaintiff Natural Resources Defense Council, Inc. (NRDC) is a nationwide non-
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`profit environmental organization. NRDC has over 300,000 members nationwide, including
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`members in the Gulf states of Louisiana, Mississippi, Alabama, and Florida. NRDC’s mission is
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`to “safeguard the Earth: its people, its plants and animals, and the natural systems on which all
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`life depends.” NRDC has worked for decades to implement and enforce the Endangered Species
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`Act, and to protect endangered species.
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`15.
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`Through its Marine Mammal Protection Project, NRDC has worked for more than
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`twenty years to protect marine mammals in the United States and abroad using various tools
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`including litigation, advocacy, policy development, and participation in Marine Mammal
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`Protection Act-mandated take reduction teams. NRDC and its members have advocated and
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`litigated to protect the Gulf of Mexico whale, by working to get it listed as endangered and to
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`curb threats that impact the whale, like ocean noise, offshore oil and gas exploration, and
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`commercial fishing.
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`16.
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`NRDC members reside throughout the United States and along the coast of the
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`Gulf of Mexico. NRDC members derive recreational, conservation, aesthetic, and other benefits
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`from the Gulf of Mexico whale in the wild.
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`17.
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`For example, in the course of her routine activities, NRDC member and Healthy
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`Gulf member Bonny Schumaker regularly visits the northeastern Gulf of Mexico and enjoys
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`seeing or seeking marine wildlife, including the Gulf of Mexico whale. Ms. Schumaker has
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`specific plans to continue the activities that bring her to the northeastern Gulf of Mexico and to
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`the habitat of the Gulf of Mexico whale, and to look for and attempt to see the Gulf of Mexico
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`whale.
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`18.
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`Plaintiff Healthy Gulf (formerly Gulf Restoration Network) is a nonprofit network
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`of community, conservation, environmental and fishing groups and individuals committed to
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`protection and restoration of the natural resources of the Gulf of Mexico. Healthy Gulf’s purpose
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`is to collaborate with and serve communities who love the Gulf of Mexico by providing research,
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`communications and coalition-building tools needed to reverse the long-pattern of over
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`exploitation of the Gulf’s natural resources. Healthy Gulf is headquartered in New Orleans,
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`Louisiana, with offices in Pensacola, Florida, and Madison, Mississippi. Healthy Gulf members
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`live in the five Gulf states of Texas, Louisiana, Mississippi, Alabama, and Florida, and
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`nationwide.
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`19.
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`Healthy Gulf members and constituents regularly use, enjoy, and benefit from the
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`marine environment of the Gulf of Mexico. Healthy Gulf members benefit from the presence of
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`the Gulf of Mexico whale and its marine environment for recreational, aesthetic, commercial,
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`scientific, and environmental purposes, including sailing, whale-watching, scientific study, boat
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`touring, underwater diving, fishing, and photography. The ability of Healthy Gulf and its
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`members to pursue these interests is impacted by the wellbeing of the Gulf of Mexico whale.
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`Defendants
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`20.
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`Defendant Wilbur Ross, United States Secretary of Commerce, is the highest-
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`ranking official within the Department of Commerce and, in that capacity, has ultimate
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`responsibility for the administration and implementation of the Endangered Species Act with
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`regard to the Gulf of Mexico whale, and for compliance with all other federal laws applicable to
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`the Department of Commerce. He is sued in his official capacity.
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`21.
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`Defendant Chris Oliver, Assistant Administrator for Fisheries, is the highest-
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`ranking official within the National Marine Fisheries Service and, in that capacity, has
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`responsibility for the administration and implementation of the Endangered Species Act with
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`regard to the Gulf of Mexico whale, and for compliance with all other federal laws applicable to
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`the National Marine Fisheries Service. He is sued in his official capacity.
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`22.
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`Defendant National Marine Fisheries Service (NMFS) is a federal agency within
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`the National Oceanic and Atmospheric Administration in the Department of Commerce, which is
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`authorized and required by law to protect and manage the fish, marine mammals, and other
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`marine resources of the United States, including enforcing and implementing the Endangered
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`Species Act. NMFS has been delegated authority by the Secretary of Commerce to implement
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`the Endangered Species Act for the Gulf of Mexico whale, and is responsible for making listing
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`decisions, processing petitions for such actions, and promulgating related regulations.
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`23.
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`Defendant Timothy Gallaudet, Assistant Secretary of Commerce for Oceans and
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`Atmosphere and Deputy Administrator, National Oceanic and Atmospheric Administration has
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`Case 1:20-cv-02047-KBJ Document 1 Filed 07/28/20 Page 7 of 13
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`responsibility for the oversight of the National Marine Fisheries Service and the administration
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`and implementation of the Endangered Species Act by the National Oceanic and Atmospheric
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`Administration and the National Marine Fisheries Service, and for compliance with all other
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`federal laws applicable to the National Oceanic and Atmospheric Administration. He is sued in
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`his official capacity.
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`24.
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`Defendant National Oceanic and Atmospheric Administration (NOAA) is a
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`federal agency within the Department of Commerce. NOAA has supervisory authority over
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`NMFS.
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`25.
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`Plaintiffs and their members derive significant benefits—recreational, aesthetic,
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`economic, cultural, or scientific—from the Gulf of Mexico whale. Defendants’ failure to comply
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`with federal law and designate critical habitat for the species under the Endangered Species Act
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`has directly and adversely harmed the interests of Plaintiffs and their members, and continues to
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`do so.
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`LEGAL BACKGROUND
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`26.
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`The Endangered Species Act, 16 U.S.C. § 1531 et seq., is a federal statute enacted
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`to conserve endangered and threatened species and the ecosystems upon which they depend. 16
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`U.S.C. § 1531(b). The ESA is “the most comprehensive legislation for the preservation of
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`endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S.
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`153, 180 (1978). The Supreme Court’s review of the Act’s “language, history, and structure”
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`established “beyond doubt that Congress intended endangered species to be afforded the highest
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`of priorities.” Id. at 174. As the Supreme Court held, “the plain intent of Congress in enacting
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`this statute was to halt and reverse the trend toward species extinction, whatever the cost.” Id.
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`at 184.
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`27.
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`One of the main purposes of the ESA is “to provide a means whereby the
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`ecosystems upon which endangered species and threatened species depend may be conserved.”
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`16 U.S.C. § 1531(b).
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`28.
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`An endangered species is one that is “in danger of extinction throughout all or a
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`significant portion of its range.” Id. § 1532(6). The Secretary of Commerce, through NMFS, is
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`responsible under the Act for determining whether marine species, including marine mammals
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`such as the Gulf of Mexico whale, are threatened or endangered.
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`29.
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`If NMFS determines that listing a species as threatened or endangered is
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`warranted, it must publish a proposed rule to that effect. Id. § 1533(b)(5). NMFS has one year
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`from the date of publication of the proposed rule to publish a final rule either finalizing its
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`determination or explaining why the proposed listing determination cannot or should not be
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`made. See id. § 1533(b)(6)(A)(i).
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`30.
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`If NMFS publishes a final rule that lists a species as threatened or endangered, it
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`must designate critical habitat concurrently with that final rule. Id. § 1533(a)(3)(A)(ii); see id.
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`§ 1533(b)(6)(C).
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`31.
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`The ESA defines critical habitat as “the specific areas within the geographical
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`area occupied by the species, at the time it is listed . . . on which are found those physical or
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`biological features (I) essential to the conservation of the species and (II) which may require
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`special management considerations or protection” and “specific areas outside the geographical
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`area occupied by the species at the time it is listed . . . upon a determination . . . that such areas
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`are essential for the conservation of the species.” Id. § 1532(5)(A).
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`32.
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`The only exceptions to the requirement that NMFS designate critical habitat
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`concurrently with listing of the species are where designation is not prudent or critical habitat is
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`“not then determinable.” Id. § 1533(a)(3)(A), (b)(6)(C)(ii).
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`33.
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`If critical habitat is not determinable at the time NMFS lists a species, NMFS may
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`extend the deadline for designating critical habitat “by not more than one additional year,” and
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`must publish within one year a final regulation designating, “to the maximum extent prudent,”
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`critical habitat “based on such data as may be available at that time.” 16 U.S.C.
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`§ 1533(b)(6)(C)(ii).
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`34.
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`The Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., provides
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`general rules governing the issuance of proposed and final regulations by federal agencies.
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`Section 10 of the APA, 5 U.S.C. § 706, provides standards for judicial review of final agency
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`action. Under that section, a reviewing court must “compel agency action unlawfully withheld or
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`unreasonably delayed.” 5 U.S.C. § 706(1).
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`FACTUAL BACKGROUND
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`The Gulf of Mexico Whale
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`35.
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`The Gulf of Mexico whale is one of the most endangered whales on the planet.
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`NMFS estimates that only 33 individuals remain. Listing Decision, 84 Fed. Reg. at 15,473.
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`36.
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`The species is “genetically distinct from all other Bryde’s whales worldwide” and
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`uses its own unique set of acoustic calls to communicate. Id. at 15,471, 15,473-74.
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`37.
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`The species is the only baleen whale that lives in the Gulf of Mexico. Although
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`historically the species ranged across the entire Gulf, its population has been restricted to a
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`limited area by industrial activity, with recent sightings confined to the area near De Soto
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`Canyon in the northeastern Gulf, along the continental shelf break. Id. at 15,472-73.
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`38.
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`The Gulf of Mexico whale faces numerous and serious threats to its existence. Id.
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`at 15,446.
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`NMFS’s History of Delay
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`39.
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`In September 2014, NRDC submitted a petition to NMFS to list the Gulf of
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`Mexico whale as endangered, outlining the threats to the species and the dire state of the
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`population.
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`40.
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`On April 6, 2015, NMFS issued a finding that action to list the species as
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`endangered “may be warranted,” 80 Fed. Reg. 18,343 (April 6, 2015), but failed to issue a 12-
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`month finding within one year of its receipt of NRDC’s petition. NRDC sued in May 2016.
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`Complaint, NRDC v. Sobeck, No. 1:16-cv-00851-KBJ (D.D.C. May 5, 2016).
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`41.
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`Several months later, NMF published a 12-month finding that the Gulf of Mexico
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`whale “is in danger of extinction throughout all of its range” and a proposed regulation to list it
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`as endangered. 81 Fed. Reg. 88,639 (Dec. 8, 2016) (the “Proposed Regulation”). NMFS
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`identified 27 threats to the whale’s survival, six of which were rated as “medium” and eight of
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`which were rated as “high.” Id. at 88,652.
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`42.
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`NMFS was required to issue a final rule, extend its review, or withdraw the
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`proposed listing within one year of the publication of the proposed rule. 16 U.S.C.
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`§ 1533(b)(6)(A). But NMFS missed that deadline, too, and NRDC and Healthy Gulf sued to
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`compel the agency to act. Complaint, NRDC v. Ross, No. 1:19-cv-00431-KBJ (D.D.C. Feb. 21,
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`2019).
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`43.
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`On April 15, 2019, nearly five years after NRDC’s petition was filed—and nearly
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`three years after the whale would have presumably been listed as endangered if NMFS had met
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`the statutory deadlines—NMFS published a final rule listing the Gulf of Mexico whale as
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`endangered throughout all of its range. Listing Decision, 84 Fed. Reg. 15,446 (April 15, 2019).
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`NMFS stated that the species was endangered “due to its small population size and restricted
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`range, and the threats of energy exploration, development and production, oil spills and oil spill
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`response, vessel collision, fishing gear entanglement, and anthropogenic noise.” Id.
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`NMFS’s Failure to Designate Critical Habitat
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`44.
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`In the April 15, 2019, Listing Decision, NMFS stated that critical habitat for the
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`special was “not determinable” at that time but would be proposed in a future rulemaking. Id.
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`45.
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`NMFS was required to publish a final regulation identifying the whale’s habitat
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`within one year of its final rule listing the Gulf of Mexico whale as an endangered species, 16
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`U.S.C. § 1533(b)(6)(C)(ii), but it did not.
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`46.
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`On April 28, 2020, Plaintiffs sent the Secretary and Defendants a notice
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`describing Defendants’ violation of the law and indicating Plaintiffs’ intent to sue if NMFS
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`failed to designate critical habitat for the Gulf of Mexico whale within sixty days. Exhibit A.
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`47.
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`As of the date of this Complaint, NMFS has not designated critical habitat for the
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`Gulf of Mexico whale.
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`48.
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`The science showing that the Gulf of Mexico whale is endangered and that its
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`habitat is in need of urgent protection is clear and compelling. This Court should compel NMFS
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`to follow the law.
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`CLAIM FOR RELIEF
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`(Violation of the Endangered Species Act and the Administrative Procedure Act)
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`49.
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`Plaintiffs incorporate by reference all preceding paragraphs as if fully stated
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`herein.
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`50.
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`Defendants have a nondiscretionary duty to designate critical habitat for the Gulf
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`of Mexico whale. 16 U.S.C. § 1533. The statute ordinarily requires designation of critical habitat
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`concurrently with the listing of an endangered species. Id. § 1533(a)(3)(A)(i), (b)(6)(C). The
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`statute allows a single, one-year extension, which Defendants invoked when they published the
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`Listing Decision on April 15, 2019; no further extension are permitted. Id. § 1533(b)(6)(C)(ii).
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`Under 16 U.S.C. § 1533(b)(6)(C)(ii), Defendants were required to designate critical habitat for
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`the Gulf of Mexico whale within, at the latest, one year of the publication of the Listing
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`Decision.
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`51.
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`As of the date of this Complaint, Defendants have failed to designate critical
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`habitat for the Gulf of Mexico whale, in violation of the ESA, 16 U.S.C. §§ 1533, 1540(g)(1)(C),
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`and the APA, 5 U.S.C. § 706(1).
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`WHEREFORE Plaintiffs request that the Court:
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`PRAYER FOR RELIEF
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`1.
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`Declare that Defendants’ failure to designate critical habitat for the Gulf of
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`Mexico whale violates its non-discretionary duty under the ESA, 16 U.S.C. § 1533(b)(6)(C), or
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`constitutes agency action unlawfully withheld under the APA, 5 U.S.C. § 706(1);
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`2.
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`Order Defendants to prepare and publish in the Federal Register a final regulation
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`designating critical habitat for the Gulf of Mexico whale by a date certain;
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`3.
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`Retain jurisdiction over this matter until Defendants have complied fully with the
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`Court’s order;
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`4.
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`5.
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`Grant Plaintiffs their costs of suit, including reasonable attorney fees; and
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`Grant Plaintiffs such other relief as the Court deems just and proper.
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`Dated: July 28, 2020
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`Respectfully Submitted,
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`
`/s/ Lucas J. Rhoads
`Lucas J. Rhoads
`D.C. Bar No. 252693
`Natural Resources Defense Council
`1152 15th Street NW, Suite 300
`Washington, DC 20005
`Tel.: 202-513-6242
`Fax: 202-232-7203
`lrhoads@nrdc.org
`
`Samuel D. Eisenberg
`IL Bar No. 6333964
`(pro hac vice pending)
`Natural Resources Defense Council
`20 N Wacker Drive, Suite 1600
`Chicago, IL 60606
`Tel.: 312-651-7922
`Fax: 312-332-1908
`seisenberg@nrdc.org
`
`Giulia C.S. Good Stefani
`OR Bar No. 176368
`(pro hac vice pending)
`Natural Resources Defense Council
`P.O. Box 106
`Mosier, OR 97040
`Tel.: 310-434-2333
`Fax: 415-875-6161
`ggoodstefani@nrdc.org
`
`Counsel for Plaintiffs
`NATURAL RESOURCES DEFENSE
`COUNCIL, INC. and HEALTHY GULF
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`13
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