Case 1:21-cv-00112-APM Document 1 Filed 01/13/21 Page 1 of 34
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`UNITED STATES DISTRICT COURT
`DISTRICT OF COLUMBIA
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`Civ. No. _____________
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`WHALE AND DOLPHIN CONSERVATION
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`7 Nelson Street
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`Plymouth, MA 02360
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`DEFENDERS OF WILDLIFE
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`1130 17th Street NW
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`Washington, DC 20036
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`CONSERVATION LAW FOUNDATION
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`62 Summer Street
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`Boston, MA 02110
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`CENTER FOR BIOLOGICAL DIVERSITY
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`378 N. Main Avenue
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`Tucson, AZ 85701
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`Plaintiffs,
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`v.
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`NATIONAL MARINE FISHERIES SERVICE
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`1315 East-West Highway
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`Silver Spring, MD 20910
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`WILBUR ROSS, in his official capacity
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`as Secretary of Commerce
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`U.S. Department of Commerce
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`1401 Constitution Avenue NW
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`Washington, DC 20230
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`Defendants.
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`__________________________________________)
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 1:21-cv-00112-APM Document 1 Filed 01/13/21 Page 2 of 34
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`INTRODUCTION
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`1.
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`Plaintiffs Whale and Dolphin Conservation, Defenders of Wildlife, Conservation
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`Law Foundation, and Center for Biological Diversity (“Plaintiffs”) challenge the unreasonable
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`delay by the Secretary of Commerce, acting through the National Marine Fisheries Service
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`(“NMFS”) (collectively, “Defendants”), in responding to Plaintiffs’ “Petition for Rulemaking to
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`Prevent Deaths and Injuries of Critically Endangered North Atlantic Right Whales from Ship
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`Strikes” dated June 28, 2012 (“2012 Petition”) and Plaintiffs’ “Petition for Rulemaking to
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`Prevent Deaths and Critically Endangered North Atlantic Right Whales from Vessel Strikes”
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`dated August 6, 2020 (“2020 Petition”).
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`2.
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`The North Atlantic right whale (Eubalaena glacialis) is one of the most
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`endangered large whales in the world. Despite nearly fifty years of federal protections under the
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`Endangered Species Act (“ESA”) and the Marine Mammal Protection Act (“MMPA”), the North
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`Atlantic right whale (also referred to hereafter as the “right whale”) has not recovered.
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`3.
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`The International Union for Conservation of Nature recently changed the species’
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`status from “endangered” to “critically endangered,” the last step before “extinct in the wild.”
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`This designation means that the right whale is considered at high risk for global extinction. In
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`2019, NMFS categorized the right whale as one of nine species whose extinction is almost
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`certain in the immediate future if existing threats are not dramatically reduced.
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`4.
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`The right whale population has been in decline since 2010. In an ongoing Unusual
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`Mortality Event that began in June 2017, 32 deaths and 14 serious injuries have been
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`documented. (“Serious injury” is a term of art under the MMPA, meaning that NMFS has
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`determined that the animal, although alive at last sighting, is likely to die of its injuries.) This
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`number significantly underestimates the true number of mortalities. NMFS has determined that
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`40 to 60 percent of right whale mortalities are never observed.
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`5.
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`In October 2020, NMFS announced that it had adjusted its right whale population
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`estimates for the past two years significantly downward. The agency’s preliminary population
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`estimate for the number of right whales alive in January 2019 is 366 right whales. NMFS also
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`revised its preliminary estimate for the number of right whales alive in January 2018 from 412
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`down to 383 right whales.
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`6.
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`In the same October 2020 announcement, NMFS stated that, since the
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`population’s peak of 481 right whales in 2011, after accounting for the birth of 103 calves,
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`approximately 218 right whales have died of presumed anthropogenic causes—a rate of roughly
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`24 whale deaths per year.
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`7.
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`The North Atlantic Right Whale Consortium recently issued its 2020 Annual
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`Report Card. Taking the January 2019 estimate of 366 right whales and subtracting the ten
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`observed deaths in 2019, the Report Card states that the best population estimate for the end of
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`2019 is 356 right whales. This number does not account for two observed deaths in 2020. Over
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`the last four years (2017–2020), observed mortalities have outnumbered births by three to two.
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`8.
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`Right whale scientists believe there may be as few as 70 breeding females left.
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`They warn that the species faces functional extinction within ten to twenty years, if the trends of
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`low birth rates coupled with high death rates eliminate these breeding females. In recent years,
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`more deaths of adult females than adult males have been recorded. There are now more adult
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`males than adult females and the gender gap is widening.
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`9.
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`Although their potential lifespan is probably 70 years and could be 100 years or
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`more based on the lifespans of closely related whale species, right whales are killed by human
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`activities before they can die of old age. Female right whales are now only living to around 45
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`years and males only to around 65 years because of human-caused mortality.
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`10.
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`Vessel strikes are one of the two primary human-caused threats inhibiting the
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`species’ recovery and threatening its survival (the other is entanglements in fishing gear). No
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`other causes of mortality for right whales who survive their first year have been documented.
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`Adult females, juveniles, and calves are more susceptible to dying from vessel strikes and
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`entanglements than adult males.
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`11.
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`In its most recent MMPA Stock Assessment Report for 2019, which covers the
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`five-year period from 2013–2017, NMFS established an annual potential biological removal
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`number of 0.8. This is how many right whales NMFS currently estimates may be killed each year
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`as a result of human activity and still allow the species to reach its optimum sustainable
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`population. Reported annual serious injuries and deaths averaged nearly eleven times this level
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`from 2018 to 2020. As of January 12, 2021, NMFS has already recorded a new seriously injured
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`right whale observed off the Georgia/Florida state border. The annual potential biological
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`removal number of 0.8 has already been exceeded for 2021.
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`12.
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`In 2008, NMFS invoked its authorities under the ESA and MMPA to promulgate
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`a regulation implementing vessel speed restrictions in specific areas and seasons along the right
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`whale’s migratory route from Massachusetts to Florida (“Vessel Speed Rule” or “Rule”). The
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`Rule’s mandatory speed restrictions apply only to vessels 65 feet or longer. Although NMFS
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`eliminated the initial five-year sunset provision in 2013, over the past 12 years, NMFS has never
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`substantively modified the Vessel Speed Rule to apply mandatory speed restrictions to vessels
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`under 65 feet or to expand the areas, seasons, or circumstances in which these restrictions apply.
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`13.
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`Since 2013, at least 12 right whale-vessel collisions have been documented in
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`U.S. waters. Of these, NMFS determined four resulted in mortalities or serious injuries. Within
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`the last year alone, vessel strikes in U.S. waters were responsible for the mortality or serious
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`injury of two of the ten calves born in the 2019–20 calving season.
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`14.
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`In 2012, three Plaintiffs petitioned NMFS to expand the scope of the Vessel
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`Speed Rule to incorporate additional measures to protect vulnerable right whales from deadly
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`vessel collisions. NMFS has never responded to this petition. In 2020, in response to the ongoing
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`Unusual Mortality Event that began in 2017 and the documented mortalities and serious injuries
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`due to vessel strikes in U.S. waters, all Plaintiffs petitioned NMFS to expand the scope of the
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`Rule. To date, NMFS has not responded to this petition either.
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`15.
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`Given the ever-worsening population status of the North Atlantic right whale, and
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`in light of the agency’s statutory obligations to protect this species, NMFS’s protracted failure to
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`act on these Petitions constitutes agency action unreasonably delayed under the Administrative
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`Procedure Act (“APA”). Plaintiffs seek an order from the Court setting a date certain for NMFS
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`to remedy these violations.
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`JURISDICTION AND VENUE
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`16.
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`This Court has jurisdiction over this action under 28 U.S.C. § 1331 because this
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`case presents a federal question under the laws of the United States, including the APA. An
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`actual, justiciable controversy exists between Plaintiffs and Defendants. The requested relief is
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`proper under 28 U.S.C. §§ 2201–2202 and 5 U.S.C. §§ 701–706. The APA waives Defendants’
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`sovereign immunity. 5 U.S.C. § 702.
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`17.
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`Venue in this Court is proper under 28 U.S.C. § 1391(e)(1). This action is brought
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`against NMFS, an agency of the United States and the Secretary of Commerce, an officer of the
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`United States acting in his official capacity. The Department of Commerce, of which NMFS is a
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`component agency, is headquartered in Washington, DC. In addition, Plaintiff Defenders of
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`Wildlife is headquartered in Washington, DC, and Plaintiff Center for Biological Diversity
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`maintains an office in this judicial district.
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`PARTIES
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`Plaintiffs
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`18.
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`Plaintiff Whale and Dolphin Conservation, Inc. (“WDC,” formerly known as
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`Whale and Dolphin Conservation Society) is part of Whale and Dolphin Conservation’s global
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`network of charities based in the United States, the United Kingdom, Germany, and Australia.
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`Together, these charities form the world’s largest organization dedicated solely to the protection
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`of whales, dolphins, and porpoises and their environments. WDC has over 200,000 members and
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`supporters in the United States. WDC and its members and supporters have worked extensively
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`to preserve the critically endangered North Atlantic right whale and its habitat. WDC is
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`incorporated in Massachusetts, with its main office located in Plymouth, MA. WDC frequently
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`comments on proposed rules and draft permits regarding the protection and conservation of
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`North Atlantic right whales. WDC is a signatory to the 2012 and 2020 Petitions.
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`19. WDC brings this action on behalf of itself and its members and supporters, many
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`of whom enjoy observing, photographing, studying, and appreciating the North Atlantic right
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`whale in its natural habitat. WDC works with commercial whale watching companies through its
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`Whale SENSE program. As a founding partner of Whale SENSE, WDC-trained naturalists and
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`interns have educated more than one million passengers a year aboard commercial whale
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`watching vessels throughout the Northeast and mid-Atlantic (from Maine to Virginia) regarding
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`the plight of the North Atlantic right whale. WDC members and supporters also regularly whale
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`watch from land and water whenever possible and will continue to do so in the future.
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`20.
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`For example, one WDC member who resides in Massachusetts, on Cape Cod Bay,
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`looks for right whales every day, particularly during the winter and spring months when right
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`whales come into Cape Cod Bay to feed. This person alone reports an average of 6–15 right
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`whale sightings each year to the NOAA Sightings Advisory System. This person regularly
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`volunteers for WDC outreach events where information on right whales is provided. This person
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`was instrumental in WDC’s ability to obtain and transport an inflatable, life-sized North Atlantic
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`right whales for educational events.
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`21.
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`Plaintiff Defenders of Wildlife (“Defenders”) is a nonprofit 501(c)(3)
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`membership organization dedicated to the protection and restoration of all native wild animals
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`and plants in their natural communities and the preservation of the habitats on which these
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`species depend. Headquartered in Washington, DC, Defenders has regional and field offices in
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`Alaska, Arizona, California, Colorado, Florida, Montana, New Mexico, North Carolina, Ohio,
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`Oregon, Texas, Washington, and Wyoming. Defenders has nearly 1.4 million and supporters
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`across the United States, including more than 337,000 members in states bordering the Atlantic
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`Ocean where right whales live, feed, breed, and migrate.
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`22.
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`Defenders has been a leader in the conservation community’s efforts to protect
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`and recover the critically endangered North Atlantic right whale for more than fifteen years
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`through litigation, legal advocacy, and support for legislation and congressional appropriations.
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`Defenders is a signatory to the 2012 and 2020 Petitions.
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`23.
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`Defenders brings this action on behalf of itself and its members, many of whom
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`enjoy observing, photographing, and appreciating the North Atlantic right whale in its natural
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`habitat. Defenders’ members regularly engage in these activities in various locations along the
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`Atlantic Coast from land and water and will continue to do so in the future.
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`24.
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`For example, one Defenders member who resides in Florida looks for right
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`whales every time she is at the beach, particularly during the winter months when pregnant
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`female right whales migrate to the warm, shallow waters off Florida and Georgia to birth and
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`nurse their calves. This member volunteered for Defenders at the eleventh annual Right Whale
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`Festival in Fernandina Beach in November 2019 to educate members of the public on the
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`importance of protecting right whales. She spent all her free time during the festival at the beach
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`looking for right whales. But for the pandemic that necessitated canceling the 2020 festival, she
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`would have volunteered again. When the Right Whale Festival resumes, she will again volunteer
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`will look for right whales from the beach in her free time. This member has previously gone
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`whale-watching in Iceland (part of the right whale’s historic range, where right whales can
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`sometimes be spotted) and has concrete plans to return to Iceland in August 2021 to go whale-
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`watching again (pandemic permitting).
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`25.
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`Plaintiff Conservation Law Foundation (“CLF”) is a nonprofit Massachusetts
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`corporation with its principal office in Boston, Massachusetts. Founded in 1966, CLF is a
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`member-supported environmental organization with offices in Massachusetts, Maine, New
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`Hampshire, Vermont, and Rhode Island. CLF advocates using law, science, and economics to
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`solve the problems threatening New England’s natural resources and communities. For decades,
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`CLF has worked to promote marine conservation and stewardship and to revitalize New
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`England’s once-legendary ocean resources. CLF has a longstanding interest in ensuring the
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`survival of the right whale and has been litigating to protect right whales from various threats for
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`more than 20 years. CLF has more than 4,700 members, most of whom reside in the Northeast
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`U.S. where right whale forage for several months every year. CLF is a signatory to the 2020
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`Petition.
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`26.
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`CLF brings this action on behalf of itself and its members, many of whom derive
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`significant scientific, recreational, spiritual, and aesthetic benefits from endangered right whales.
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`Their interests in observing, studying, and appreciating right whales in their marine habitat
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`depend on a viable population of right whales that contributes to a healthy, functioning ocean
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`ecosystem. CLF’s members regularly engage in activities such as observing, studying, and
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`photographing right whales from land and water and will continue to do so in the future. CLF’s
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`members have been active in promoting the right whale’s recovery from its endangered status.
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`CLF and its members are alarmed and distressed by the species’ declining abundance, the
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`troubling number of recent mortalities, and federal regulators’ failure to take effective
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`management action to address vessel speed restrictions, all of which jeopardize the species’ very
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`survival.
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`27.
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`For example, one CLF member is a resident of Nahant, MA with a strong interest
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`in protecting the ocean waters around Nahant. She is the president of the non-profit “Safer
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`Waters In Massachusetts,” created in 1967 to protect regional waters, beaches, and land from
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`pollution and other harms. In 2016, she had a moving experience with a North Atlantic right
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`whale that visited and swam in those waters. Her experience viewing the whale in such close
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`proximity was highly emotional and personal. Since then she has tried to make a difference for
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`the future of right whales by educating her community about their plight and engaging with other
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`nonprofit organizations to generate additional protections. On March 22, 2020, she observed five
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`North Atlantic right whales feeding close to shore between Nahant and Marblehead. She reported
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`these sightings to NMFS and provided her photographs to the agency to help identify individual
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`whales in the area. She continues to monitor her regional waters in hopes of viewing and
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`photographing right whales. She publicizes sightings and includes factual information about the
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`tragic plight of the North Atlantic right whale via her organization’s email distribution list (about
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`450 people strong). Her work to educate others about the dire condition of the population is an
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`ongoing and significant part of her personal and recreational life. She is materially harmed by
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`Defendants’ failure to sufficiently protect the species.
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`28.
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`Plaintiff Center for Biological Diversity (“Center”) is a nonprofit 501(c)(3)
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`organization incorporated in the State of California with offices across the country, including in
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`Washington, DC, California, Arizona, Florida, New York, Oregon, and Washington, and in Baja
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`California Sur, Mexico. The Center works through science and environmental law to advocate
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`for the protection of endangered, threatened, and rare species and their habitats both in the
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`United States and abroad. The Center has over 81,800 active members, including members who
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`reside in and travel to states along the U.S. Eastern Seaboard where right whales feed, breed, and
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`migrate. Through its Oceans Program, the Center has worked for years to protect marine
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`mammals in the United States and overseas, including seeking protections for these species from
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`human activities and ensuring their habitats are properly protected from human use and
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`development. The Center has worked to protect the North Atlantic right whale from a range of
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`anthropogenic threats by reviewing scientific data and agency information, petitioning NMFS for
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`increased protections, filing litigation, and monitoring and commenting on activities that have
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`the potential to harm right whales. The Center is a signatory to the 2012 and 2020 Petitions.
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`29.
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`The Center brings this action on behalf of itself and its members, many of whom
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`enjoy studying, photographing, observing, and attempting to observe North Atlantic right
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`whales. The Center’s members regularly engage in these activities in various locations along the
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`Atlantic Coast from land and water and will continue to do so in the future.
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`30.
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`For example, one Center member has a home on Cape Cod Bay. Her home is
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`located on the top of a hill above the Bay and she can watch whales from her living room
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`window. She has seen many whales from this vantage; one particularly memorable spring, she
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`viewed a large number of right whales together in the Bay, spouting water. She has also seen a
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`female and baby right whale in the waters near her home. She plans to continue looking for and
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`viewing right whales from her window and near her home in the future. Her interests are harmed
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`by Defendants’ failure to sufficiently safeguard the right whale. In fact, she often sees vessels
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`from her windows in addition to right whales. She is aware of, and worried about, the risk of
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`injury and death that these and other vessels pose to right whales.
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`31.
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`Plaintiffs’ and their members’ interests have been, are, and will be directly,
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`adversely, and irreparably affected by Defendants’ violations of law. Plaintiffs’ members will
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`continue to be harmed by Defendants’ unlawful actions until and unless this Court provides the
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`relief prayed for in this Complaint.
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`Defendants
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`32.
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`Defendant National Marine Fisheries Service is a component agency of the
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`Department of Commerce. It is sometimes referred to as NOAA Fisheries. NMFS is the agency
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`to which the Secretary of Commerce has delegated the authority to conserve endangered and
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`threatened marine species under the ESA and protect marine mammal species under the MMPA,
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`including through promulgating protective rules.
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`33.
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`Defendant Wilbur Ross is the Secretary of Commerce and is sued in his official
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`capacity. Secretary Ross directs all business of the Department of Commerce. The Secretary of
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`Commerce is ultimately responsible under federal law for ensuring that the actions and decisions
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`of the Department and its component agencies, including NMFS, comply with all applicable
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`laws and regulations, including the ESA and MMPA.
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`STATUTORY FRAMEWORK
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`Endangered Species Act
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`34.
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`In 1973, recognizing that certain species “have been so depleted in numbers that
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`they are in danger of or threatened with extinction,” Congress enacted the ESA, 16 U.S.C. §§
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`1531–1544, “to provide a means whereby the ecosystems upon which endangered and threatened
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`species depend may be conserved, [and] to provide a program for the conservation of such
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`endangered species and threatened species.” Id. § 1531(a)(2), (b).
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`35.
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`The ESA protects imperiled species by listing them as “endangered” or
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`“threatened.” A species is endangered if it “is in danger of extinction throughout all or a
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`significant portion of its range.” Id. § 1532(6). A species is threatened if it is “likely to become
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`an endangered species in the foreseeable future throughout all or a significant portion of its
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`range.” Id. § 1532(20).
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`36.
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`Considered “the most comprehensive legislation for the preservation of
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`endangered species ever enacted by any nation,” the ESA embodies the “plain intent” of
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`Congress to “halt and reverse the trend toward species extinction, whatever the cost.” Tennessee
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`Valley Authority v. Hill, 437 U.S. 153, 180, 184 (1978).
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`37.
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`The ESA defines conservation as “the use of all methods and procedures which
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`are necessary to bring any endangered species or threatened species to the point at which the
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`measures provided pursuant to [the ESA] are no longer necessary.” Id. § 1532(3). The ESA’s
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`goal is not simply to prevent endangered and threatened species from becoming extinct but to
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`recover these species to the point where they no longer require the statute’s protections.
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`38.
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`To that end, the ESA expresses that it is the “policy of Congress that all Federal
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`departments and agencies shall seek to conserve endangered species and threatened species and
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`shall utilize their authorities in furtherance” of the statute’s purposes. 16 U.S.C. § 1531(c)(1).
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`The ESA states that the Secretary [of Interior or Commerce]1 “shall review other programs
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`administered by him and utilize such programs in furtherance” of the ESA’s purposes, while
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`“[a]ll other Federal agencies shall, in consultation with and with the assistance of the Secretary,
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`utilize their authorities” to further the ESA’s purposes “by carrying out programs for the
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`conservation” of listed species. Id. § 1536(a)(1).
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`39.
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`The ESA requires the Secretary to develop and implement recovery plans “for the
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`conservation and survival” of listed species. Id. § 1533(f)(1). Recovery plans must incorporate “a
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`description of such site-specific management measures as may be necessary to achieve the plan’s
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`goal for the conservation and survival of the species. Id. § 1533(f)(1)(B)(i).
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`40.
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`The ESA prohibits the intentional or incidental take of an endangered species
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`unless otherwise permitted. Id. § 1538(a)(1). The statute defines take to include engaging in, or
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`attempting to engage in, conduct that will “harass, harm, pursue, hunt, shoot, wound, kill, trap,
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`capture, or collect” an individual of an endangered species. Id. § 1532(19). NMFS defines
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`“harm” by regulation to include “an act which actually kills or injures fish or wildlife.” 50 C.F.R.
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`§ 222.102.
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`1
`The Secretary of the Interior, through the U.S. Fish and Wildlife Service, administers the
`ESA for terrestrial species, freshwater fish, and a few species of marine mammals, while the
`Secretary of Commerce, through NMFS, administers the statute for most marine species,
`including right whales.
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`41.
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`The ESA authorizes the Secretary of Commerce to promulgate regulations as
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`appropriate to enforce the statute. 16 U.S.C. § 1540(f).
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`Marine Mammal Protection Act
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`42.
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`In enacting the MMPA in 1972, 16 U.S.C. §§ 1361–1389, Congress declared that
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`“marine mammals have proven themselves to be resources of great international significance,
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`esthetic and recreational as well as economic” and that it was Congress’ sense “that they should
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`be protected and encouraged to develop to the greatest extent feasible commensurate with sound
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`policies of resource management and that the primary objective of their management should be
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`to maintain the health and stability of the marine ecosystem.” Id. § 1361(6).
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`43.
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`Congress recognized that “certain species and population stocks of marine
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`mammals are, or may be, in danger of extinction or depletion as a result of man’s activities.” Id.§
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`1361(1). It determined that “such species and population stocks should not be permitted to
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`diminish beyond the point at which they cease to be a significant functioning element in the
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`ecosystem of which they are a part” and that “they should not be permitted to diminish below
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`their optimum sustainable population.” Id. § 1361(2). The statute defines “optimum sustainable
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`population” to mean “the number of animals which will result in the maximum productivity of
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`the population or species, keeping in mind the carrying capacity of the habitat and the health of
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`the ecosystem of which they form a constituent part.” Id. § 1362(9).
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`44.
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`To achieve these goals, the MMPA establishes a “moratorium on the taking” of
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`marine mammals. Id. § 1371(a). “Take” is broadly defined in the MMPA to mean “to harass,
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`hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” Id. §
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`1362(13). The statute specifically prohibits (unless otherwise permitted) “any person subject to
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`the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction
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`Case 1:21-cv-00112-APM Document 1 Filed 01/13/21 Page 15 of 34
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`of the United States to take any marine mammal on the high seas.” Id. § 1372(a)(1). Similarly, it
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`prohibits “any person or vessel or conveyance to take any marine mammal in waters or on lands
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`under the jurisdiction of the United States.” Id. § 1372(a)(2)(A). The statute prohibits both
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`intentional and incidental take.
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`45.
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`In enacting the MMPA, Congress specifically recognized that the statute would
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`provide a much-needed means for regulating vessels that harass, harm, or kill marine mammals.
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`See 1972 H.R. Rep. No. 92-107 (1972) reprinted in 1972 U.S.S.C.A.N. 4144, 4147–50 (stating
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`that “the operation of powerboats in areas where the manatees are found” pose a threat to that
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`species and that, without the MMPA, “the Federal government is essentially powerless to force
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`these boats to slow down or curtail their operations.” The MMPA “would provide the Secretary
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`of the Interior with adequate authority to regulate or even forbid the use of powerboats in waters
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`where manatees are found.”).
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`46.
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`The MMPA authorizes the Secretary of Commerce to prescribe such regulations
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`as are necessary and appropriate to carry out the statute’s purposes. 16 U.S.C. § 1382(a).
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`Administrative Procedure Act
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`47.
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`The APA establishes general rules governing the issuance of proposed and final
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`regulations by federal agencies. 5 U.S.C. §§ 551–559. It defines a “rule making” to mean the
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`“process for formulating, amending, or repealing a rule.” Id. § 551(5). Absent narrow
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`circumstances, a federal agency must publish a notice and allow public comment on any
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`proposed “rule making.” Id. § 553(b), (c).
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`48.
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`The statute establishes that “[e]ach agency shall give an interested person the right
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`to petition for the issuance, amendment, or repeal of a rule.” Id. § 553(e). It also requires that,
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`“within a reasonable time, each agency shall proceed to conclude a matter presented to it.” Id. §
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`Case 1:21-cv-00112-APM Document 1 Filed 01/13/21 Page 16 of 34
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`555(b). Further, the agency must give “prompt notice” of the “denial in whole or in part” of a
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`written petition, together with a “brief statement of the grounds for denial.” Id. § 555(e).
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`49.
`
`The APA establishes judicial review provisions for agency actions that apply
`
`unless statutes preclude judicial review or the action is committed to agency discretion by law. 5
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`U.S.C. §§ 701–706. “Agency action” is defined to include “the whole or a part of an agency rule,
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`order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13).
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`Under the APA’s judicial review provision, the reviewing court shall “compel agency action
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`unlawfully withheld or unreasonably delayed[.]” Id. § 706(1).
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`50.
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`In this Circuit, courts consider several factors in determining whether an agency’s
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`delay is unreasonable, including: (1) “the length of time that has elapsed since the agency came
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`under a duty to act,” (2) “the context of the statute which authorizes the agency’s action,” (3)
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`“the consequences of the agency’s delay,” and (4) “any plea of administrative effort,
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`administrative convenience, practical difficulty in carrying out a legislative mandate, or need to
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`prioritize in the face of limited resources.” Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir.
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`2001); see also Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).
`
`FACTS
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`The North Atlantic Right Whale
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`51.
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`The North Atlantic right whale’s current range primarily extends over the eastern
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`seaboard of North America, from the coastal waters of Atlantic Canada to Florida. Right whales
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`migrate seasonally. In the spring, summer, and fall, many right whales can be found in the colder
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`waters off Atlantic Canada; they are now found year-round in Southern New England waters. In
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`the fall and winter, pregnant female right whales may travel more than a thousand miles from
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`Case 1:21-cv-00112-APM Document 1 Filed 01/13/21 Page 17 of 34
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`their cold-water feeding grounds to the shallow, warm coastal waters of the southeastern United
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`States to birth and nurse their calves in the species’ only known calving grounds.
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`52.
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`As the apocryphal tale is told, whalers gave the right whale its common name.
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`They supposedly dubbed it the “right” whale to hunt because it is often found close to shore,
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`swims relatively slowly, and is so blubber-rich that a healthy whale will usually float when
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`killed.2
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`53.
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`Although this just-so story is just that, there is no doubt that whalers on both sides
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`of the Atlantic enthusiastically pursued the right whale to the brink of extinction. Norse whalers
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`hunted right whales as early as the ninth century. Beginning in the eleventh century, Basque
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`whalers established a thriving European trade in right whale meat, pursuing their prey to the
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`shores of Newfoundland by the sixteenth century. Centuries of whaling essentially extirpated the
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`species from its eastern North Atlantic ran