Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 1 of 25 PageID #: 1
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`MAHESH CLEVELAND (#11023)
`Earthjustice
`850 Richards Street, Suite 400
`Honolulu, Hawai‘i 96813
`T: (808) 599-2436
`Email: mcleveland@earthjustice.org
`ANDREA A. TREECE (pro hac vice forthcoming)
`Earthjustice
`50 California St., Suite 500
`San Francisco, CA 94111
`T: (415) 217-2089
`Email: atreece@earthjustice.org
`GRACE P. BAUER (pro hac vice forthcoming)
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`T: (206) 343-7340
`Email: gbauer@earthjustice.org
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAI‘I
`CONSERVATION COUNCIL FOR
`Civil No.
`HAWAI‘I, a non-profit corporation, and
`MICHAEL NAKACHI, an individual,
`Plaintiffs,
`
`22-cv-00224
`
`PLAINTIFFS’ COMPLAINT
`FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`v.
`NATIONAL MARINE FISHERIES
`SERVICE, Department of Commerce;
`NATIONAL OCEANIC AND
`ATMOSPHERIC ADMINISTRATION,
`Department of Commerce; and GINA
`RAIMONDO, in her official capacity as
`Secretary of the United States Department
`of Commerce,
`
`Defendants.
`
`
`
`MAHESH CLEVELAND (#11023)
`Earthjustice
`850 Richards Street, Suite 400
`Honolulu, Hawai‘i 96813
`T: (808) 599-2436
`Email: mcleveland@earthjustice.org
`ANDREA A. TREECE (pro hac vice forthcoming)
`Earthjustice
`50 California St., Suite 500
`San Francisco, CA 94111
`T: (415) 217-2089
`Email: atreece@earthjustice.org
`GRACE P. BAUER (pro hac vice forthcoming)
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`T: (206) 343-7340
`Email: gbauer@earthjustice.org
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAI‘I
`CONSERVATION COUNCIL FOR
`Civil No.
`HAWAI‘I, a non-profit corporation, and
`MICHAEL NAKACHI, an individual,
`Plaintiffs,
`
`22-cv-00224
`
`PLAINTIFFS’ COMPLAINT
`FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`v.
`NATIONAL MARINE FISHERIES
`SERVICE, Department of Commerce;
`NATIONAL OCEANIC AND
`ATMOSPHERIC ADMINISTRATION,
`Department of Commerce; and GINA
`RAIMONDO, in her official capacity as
`Secretary of the United States Department
`of Commerce,
`
`Defendants.
`
`
`
`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 2 of 25 PageID #: 2
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`INTRODUCTION
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`1.
`
`Plaintiffs Conservation Council of Hawai‘i and Michael Nakachi
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`bring this action for declaratory and injunctive relief to remedy Federal
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`Defendants’ (collectively, the National Marine Fisheries Service (“NMFS”))
`
`failure to protect threatened oceanic whitetip sharks from harm caused by fisheries
`
`in the Western Pacific Ocean. Specifically, NMFS has failed to complete required
`
`consultation under the Endangered Species Act (“ESA”) regarding the effects of
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`NMFS’s continued authorization of two fisheries managed under the Fishery
`
`Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region
`
`(“Pelagic FEP”) on the oceanic whitetip shark. By failing to complete consultation,
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`NMFS is failing to ensure that these activities do not jeopardize the continued
`
`existence of the species, in violation of Section 7 of the ESA and its implementing
`
`regulations.
`
`2.
`
`The oceanic whitetip shark has suffered a precipitous population
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`decline of up to 88 percent in recent decades. The decline is due primarily to
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`significant fishing pressure in the form of incidental capture and death in fisheries
`
`targeting other species (“bycatch”) and targeted catch. Ongoing fishing-related
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`mortality and harm continue to threaten the shark’s existence.
`
`3.
`
`In recognition of its population decline and ongoing threats, NMFS
`
`issued a final rule in January 2018 listing the oceanic whitetip shark as a threatened
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`1
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`species under the ESA.
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`4.
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`Section 7 of the ESA requires every federal agency to ensure, through
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`consultation with the relevant federal wildlife agency (here, NMFS’s Office of
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`Protected Resources), that any agency action that may affect a threatened or
`
`endangered species will not jeopardize the species’ continued existence.
`
`5.
`
`In the time since it listed the oceanic whitetip shark, NMFS’s Office
`
`of Sustainable Fisheries has continued to authorize fisheries managed under the
`
`Pelagic FEP that affect the oceanic whitetip shark through bycatch. Capture in
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`these fisheries can kill or seriously harm individual oceanic whitetip sharks,
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`contributing to population reductions and diminishing the likelihoods of its
`
`survival and recovery.
`
`6.
`
`NMFS has not completed the required ESA consultation on the effects
`
`of two of these fisheries—the Hawai‘i deep-set longline fishery and the American
`
`Samoa longline fishery—on numerous ESA-listed species, including the oceanic
`
`whitetip shark.
`
`7.
`
`NMFS’s continued authorization of the Hawai‘i deep-set longline
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`fishery and American Samoa longline fishery without first completing this required
`
`consultation violates the agency’s procedural duty to complete consultation and its
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`substantive duty to avoid jeopardy to the continued existence of listed species
`
`under Section 7 of the ESA. 16 U.S.C. § 1536(a)(2).
`
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`2
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`8.
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`Plaintiffs therefore ask this Court to declare that NMFS is in violation
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`of the ESA and its implementing regulations and to order NMFS to complete the
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`required consultations and issue final biological opinions on the effects of the
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`Hawai‘i deep-set longline fishery and the American Samoa longline fishery on the
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`oceanic whitetip shark within 90 days.
`
`JURISDICTION AND VENUE
`
`9.
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C.
`
`§ 1331 (federal question) and 16 U.S.C. § 1540(c), (g) (ESA citizen suits).
`
`10. Plaintiffs provided written notice of the legal violations alleged in this
`
`Complaint to the named Defendants on February 7, 2019, as required by the ESA.
`
`See id. § 1540(g)(2)(C). Defendants have not corrected their violations of law.
`
`11. This Court has authority to grant Plaintiffs’ requested relief pursuant
`
`to the ESA, id. § 1540(g), the Administrative Procedure Act (APA), 5 U.S.C.
`
`§ 706, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202. Defendants’
`
`sovereign immunity has been waived under the ESA’s citizen suit provision,
`
`16 U.S.C. § 1540(g)(1)(A), and the APA, 5 U.S.C. § 702.
`
`12. Venue is properly vested in this District pursuant to 16 U.S.C.
`
`§ 1540(g)(3)(A) and 28 U.S.C. § 1391(e)(i) because a substantial part of the events
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`or omissions giving rise to Plaintiffs’ claims occurred in this District and Plaintiffs
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`reside in this District.
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`3
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`PARTIES
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`13. Plaintiff Conservation Council for Hawai‘i (“CCH”) is a non-profit
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`citizens’ organization based in Hawai’i with approximately 5,000 members in
`
`Hawai‘i, the United States mainland, and foreign countries. CCH is the Hawai‘i
`
`affiliate of the National Wildlife Federation, a non-profit membership organization
`
`with over 5.8 million members and supporters nationwide. CCH’s mission is to
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`protect native Hawaiian species, including threatened and endangered species, and
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`to restore native Hawaiian ecosystems for future generations. CCH and its
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`members have advocated for increased protection for marine life by supporting
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`shark protection bills in the state legislature, a statewide ban on lay gillnets, and
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`the establishment of marine protected areas. In 2015, CCH, along with others,
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`successfully challenged NMFS’s decision to permit the U.S. Navy’s use of high-
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`powered sonar and explosives off the coast of Hawai‘i and Southern California,
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`which harm marine life. In the local community, CCH has produced a series of
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`wildlife viewing interpretive signs to help protect marine species and held beach
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`clean-ups.
`
`14. CCH members include wildlife biologists, Native Hawaiian
`
`practitioners, farmers, fishermen, hunters, educators, artists, community leaders,
`
`and others who study and enjoy native Hawaiian wildlife. CCH members who live
`
`in other states visit the islands to observe and enjoy Hawai‘i’s native wildlife. CCH
`
`
`
`4
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`
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`brings this action on behalf of itself and its adversely affected members and staff.
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`15. Plaintiff Michael Nakachi is a Native Hawaiian cultural practitioner
`
`and a small business owner. Mr. Nakachi’s ‘aumakua1 is the manō (shark) and his
`
`family’s lineage traces back to a direct line of kahu manō (shark guardians or shark
`
`keepers) from the island of Maui. Traditionally, the kahu manō was an important
`
`spiritual leader and residents of the ahupua‘a (district) had to ask permission from
`
`the kahu manō before taking a shark. As the family ‘aumakua, the manō has been
`
`an integral presence during significant life events and has protected Mr. Nakachi’s
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`family in times of peril while at sea. From a very young age, Mr. Nakachi has felt
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`his connectivity with the land, the ocean, and the manō, and has spent his life
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`working to understand and preserve his family heritage and sharks.
`
`16.
`
`In his professional life, over the past thirty years, Mr. Nakachi has led
`
`thousands of scuba diving trips throughout the Hawaiian Islands as the owner of a
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`scuba diving company. He spends his days educating people about the sharks’
`
`cultural and ecological importance and guides visitors and locals alike in how to
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`engage and respect sharks in their underwater world. Over the years, Mr. Nakachi
`
`
`1 ʻAumākua are “[f]amily or personal gods, deified ancestors who might assume
`the shape of sharks” or other natural elements. Further, “[a] symbiotic relationship
`existed; mortals did not harm or eat ʻaumākua (they fed sharks), and ʻaumākua
`warned and reprimanded mortals in dreams, visions, and calls.” Mary Kawena
`Pukui & Samual H. Elbert, Hawaiian Dictionary 32 (Univ. of Haw. Press 1986).
`
`
`
`5
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`has personally observed a decline in the number of oceanic whitetip sharks in the
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`local waters and noticed that the vast majority of sharks he observes now have
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`been marred as a result of fishing activities (e.g., scars caused by fishing line,
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`hooks, nets; a broken jaw from a vessel collision).
`
`17. Mr. Nakachi is a member of the West Hawai‘i Fisheries Council, and
`
`has been actively involved in efforts to preserve Hawai‘i’s natural resources,
`
`including the shark. With the West Hawai‘i Fisheries Council, for instance, Mr.
`
`Nakachi advocated for the passage of Act 306, a state law that was passed in 1998
`
`and established the West Hawai‘i Regional Fishery Management Area, which
`
`prohibited the take, killing, possession, and sale of all sharks in the nearshore
`
`waters of the western shores of Hawai‘i island. He has provided oral testimony in
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`front of the Hawai‘i state legislature multiple times, most recently on House Bill
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`553, which passed into law in 2021 after seven years of advocacy. The law, known
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`as Act 51, became effective January 1, 2022, and makes it illegal to knowingly
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`capture, entangle, or kill any shark in Hawai‘i state waters. For the past nineteen
`
`years, he has also been involved with the Ka‘ūpūlehu Marine Life Advisory
`
`Committee, working with the Hawai‘i Department of Land and Natural Resources
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`on the implementation of a no-take marine reserve and the development of a
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`management plan based on science and cultural integration to guide sustainable
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`harvest in the future. That work has included Mr. Nakachi diving every other day
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`6
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`in the Kaʻūpūlehu Marine Reserve on the North Kona Coast of Hawaiʻi Island to
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`assess and monitor the abundance of nearshore species, including sharks.
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`18. The legal violations alleged in this complaint cause direct injury to the
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`cultural, scientific, aesthetic, recreational, conservation, educational, spiritual, and
`
`other interests of Plaintiffs and their members and staff. These are actual, concrete
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`injuries to Plaintiffs, caused by Defendants’ failure to comply with the ESA.
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`Unless the requested relief is granted, Plaintiffs’ interests will continue to be
`
`injured by the Defendants’ failure to comply with the Act. The relief sought herein
`
`would redress Plaintiffs’ injuries. Plaintiffs have no other adequate remedy at law.
`
`19. Defendant Gina Raimondo is Secretary of the United States
`
`Department of Commerce (“Secretary”). She is sued in her official capacity as the
`
`chief officer of the Department of Commerce, which is charged with overseeing
`
`the proper administration and implementation of the Magnuson-Stevens Fishery
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`Conservation and Management Act (“Magnuson-Stevens Act”), which governs
`
`federal fishery management. The Secretary is also responsible for administering
`
`and implementing the ESA with respect to certain marine species. The Secretary is
`
`responsible for complying with the ESA when taking any action that may affect
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`threatened or endangered species.
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`20. Defendant National Oceanic and Atmospheric Administration
`
`(“NOAA”) is an agency of the United States Department of Commerce with
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`7
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`supervisory responsibility for NMFS. The Secretary has delegated responsibility to
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`implement and enforce compliance with the Magnuson-Stevens Act and ESA to
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`NOAA, which in turn has sub-delegated that responsibility to NMFS.
`
`21. Defendant National Marine Fisheries Service is the agency to which
`
`the Secretary of Commerce has delegated the authority to manage federal fisheries,
`
`including the Hawai‘i deep-set longline fishery and American Samoa longline
`
`fishery, pursuant to the Magnuson-Stevens Act. NMFS also is the agency with
`
`responsibility for administering and implementing the ESA with respect to certain
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`marine species. NMFS is responsible for complying with the ESA when taking any
`
`action that may affect threatened or endangered species.
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`STATUTORY BACKGROUND
`
`I.
`
`The Endangered Species Act
`
`22. Congress enacted the ESA to protect endangered and threatened
`
`species and the habitats upon which they depend. 16 U.S.C. § 1531(b). Through
`
`the ESA, Congress declared its policy “that all Federal departments and agencies
`
`shall seek to conserve endangered species and threatened species and shall utilize
`
`their authorities in furtherance of the purposes of [the Act].” Id. § 1531(c)(1).
`
`23. The ESA’s “language, history, and structure . . . indicate[] beyond
`
`doubt that Congress intended endangered species to be afforded the highest of
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`priorities.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174 (1978). “The plain intent
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`8
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`of Congress in enacting [the ESA] was to halt and reverse the trend toward species
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`extinction, whatever the cost.” Id. at 184.
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`24. The ESA provides protections to those species the U.S. Fish and
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`Wildlife Service or NMFS designates as either “endangered” or “threatened.” See
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`16 U.S.C. § 1533. A species is endangered when it “is in danger of extinction
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`throughout all or a significant portion of its range.” Id. § 1532(6). A species is
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`threatened if it “is likely to become an endangered species within the foreseeable
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`future throughout all or a significant portion of its range.” Id. § 1532(20).
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`25. Section 7 of the ESA imposes a continuing and affirmative duty on
`
`each federal agency to “insure that any action authorized, funded, or carried out by
`
`such agency . . . is not likely to jeopardize the continued existence of any
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`endangered species or threatened species.” Id. § 1536(a)(2).
`
`26.
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`In the context of Section 7, an “action” includes “all activities or
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`programs of any kind authorized, funded, or carried out, in whole or in part, by
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`Federal agencies” that are within the agencies’ discretionary control. 50 C.F.R. §§
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`402.02, 402.03.
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`27. The ESA and its implementing regulations establish an interagency
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`consultation process to assist federal agencies in complying with their substantive
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`duty to avoid jeopardy under the ESA. The consultation process requires an action
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`agency, whenever it takes an action that “may affect” a threatened or endangered
`
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`9
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`species or critical habitat, to consult with the appropriate wildlife agency—the
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`consulting agency—to determine whether the action may cause jeopardy.
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`16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). NMFS has responsibility under the
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`ESA for protecting the oceanic whitetip shark and most other marine species
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`through, among other things, the consultation process.
`
`28. To “jeopardize the continued existence of” a species denotes
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`“engag[ing] in an action that reasonably would be expected, directly or indirectly,
`
`to reduce appreciably the likelihood of both the survival and recovery of a listed
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`species in the wild by reducing the reproduction, numbers, or distribution of that
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`species.” 50 C.F.R. § 402.02.
`
`29. Agencies are required to “use the best scientific and commercial data
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`available” throughout the consultation process. 16 U.S.C. § 1536(a)(2); 50 C.F.R.
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`§§ 402.14(d), (g)(8).
`
`30. The Section 7 consultation process begins with a determination
`
`whether an agency action “may affect” a listed species or its critical habitat. “The
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`minimum threshold for an agency action to trigger consultation . . . is low . . . .”
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`W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011). “Any
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`possible effect . . . triggers the formal consultation requirement . . . .” Interagency
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`Cooperation—Endangered Species Act of 1973, as Amended, 51 Fed. Reg. 19,926,
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`19,949 (June 3, 1986) (emphasis added); see also U.S. Fish & Wildlife Serv. &
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`10
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`Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook at xvi
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`(1998) (“May affect [is] the appropriate conclusion when a proposed action may
`
`pose any effects on listed species or designated critical habitat.”). An agency is
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`excused from consulting only if the action agency determines with the written
`
`concurrence of the consulting agency that the proposed action is not likely to
`
`adversely affect any listed species or critical habitat. See 50 C.F.R. § 402.14(b)(1).
`
`31. At the conclusion of consultation, an action agency will obtain either a
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`written concurrence from the consulting agency that the proposed action is “not
`
`likely to adversely affect” listed species, 50 C.F.R. §§ 402.12(j), (k), 402.13(c),
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`402.14(b)(1), or, if the action is likely to adversely affect listed species, a
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`biological opinion evaluating those effects and determining whether the action is
`
`likely to jeopardize the continued existence of the listed species, 16 U.S.C.
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`§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h).
`
`32.
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`If the consulting agency concludes in the biological opinion that the
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`proposed action is likely to jeopardize the species, it must specify reasonable and
`
`prudent alternatives, if any, that would avoid the likelihood of jeopardy, or specify
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`that no such alternatives exist. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. §
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`402.14(h)(2).
`
`33.
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`If the consulting agency concludes that the action is not likely to
`
`jeopardize the continued existence of the species, but that incidental take of the
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`11
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`threatened species will occur, the consulting agency must produce a written
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`“incidental take statement” that “[s]pecifies the impact, i.e., the amount or extent,
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`of such incidental taking on the species.” 16 U.S.C. § 1536(b)(4); see also 50
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`C.F.R. § 402.14(i)(1)(i). This requirement applies even when take of the species is
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`not prohibited by statute or regulation. Ctr. for Biological Diversity v. Salazar, 695
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`F.3d 893, 911 (9th Cir. 2012). An incidental take statement must also specify
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`“reasonable and prudent measures” that are “necessary or appropriate to minimize
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`[the] impact” of such incidental take and the “terms and conditions (including, but
`
`not limited to, reporting requirements) that must be complied with by the Federal
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`agency” to implement the measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R.
`
`§ 402.14(i)(1)(ii)–(iv). The incidental take statement serves as a check on the
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`agency’s determination that the proposed action’s effects on the species will not
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`jeopardize the species’ continued existence. Salazar, 695 F.3d at 911.
`
`34. The duty to consult is ongoing. Federal agencies are required to
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`“reinitiate” consultation under Section 7 of the ESA in four circumstances:
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`(1) If the amount or extent of taking specified in the incidental take
`statement is exceeded;
`(2) If new information reveals effects of the action that may affect
`listed species or critical habitat in a manner or to an extent not
`previously considered;
`(3) If the identified action is subsequently modified in a manner that
`causes an effect to the listed species or critical habitat that was not
`considered in the biological opinion or written concurrence; or
`(4) If a new species is listed or critical habitat designated that may be
`affected by the identified action.
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`50 C.F.R. § 402.16(a).
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`35. Compliance with the ESA’s Section 7 consultation requirement is
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`integral to fulfilling the ESA’s substantive objective because the consultation
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`process ensures that federal agencies will not cause serious, undue harm to
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`threatened or endangered species. Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034
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`(9th Cir. 2005) (“The purpose of the consultation process . . . is to prevent later
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`substantive violations of the ESA.”); Thomas v. Peterson, 753 F.2d 754, 764 (9th
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`Cir. 1985) (stating consultation process serves as a procedural requirement “to
`
`ensure compliance with the [ESA’s] substantive provisions”).
`
`II. Magnuson-Stevens Fishery Conservation and Management Act
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`36. The Magnuson-Stevens Act governs the conservation and
`
`management of fisheries in the United States territorial waters and in the exclusive
`
`economic zone, which extends from the boundaries of state waters (typically 3
`
`miles from shore) to 200 miles offshore or to an international boundary with
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`neighboring countries. 16 U.S.C. §§ 1801(b)(1), 1802(11); 33 C.F.R. § 2.30.
`
`37. The Magnuson-Stevens Act creates eight Regional Fishery
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`Management Councils and requires them to prepare fishery management plans for
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`all fisheries under their authority that require conservation and management. 16
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`U.S.C. § 1852(h)(1). The Western Pacific Fishery Management Council has
`
`authority over federally managed fisheries operating off the coasts of Hawai‘i,
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`American Samoa, Guam, and the Northern Mariana Islands. 16 U.S.C. §
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`1852(a)(1)(H).
`
`38. The Magnuson-Stevens Act requires NMFS to review all fishery
`
`management plans, plan amendments, and implementing regulations to ensure they
`
`comply with all applicable law, including the ESA. 16 U.S.C. § 1854(a), (b). The
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`Magnuson-Stevens Act assigns to NMFS “general responsibility to carry out any
`
`fishery management plan.” 16 U.S.C. § 1855(d). NMFS authorizes and manages
`
`the Hawai‘i deep-set longline fishery and American Samoa longline fishery
`
`pursuant to the Pelagic FEP. See, e.g., 50 C.F.R. §§ 665.1, 665.798–665.819.
`
`III. Administrative Procedure Act
`
`39. The APA directs an agency “to conclude a matter presented to it”
`
`“within a reasonable time.” 5 U.S.C. § 555(b).
`
`40. A reviewing court may compel action if the agency has a duty to act
`
`and it has “unreasonably delayed” in discharging that duty. Id. § 706(1).
`
`FACTUAL BACKGROUND
`
`I.
`
`NMFS Listed the Oceanic Whitetip Shark as a Threatened Species
`Under the ESA Due Primarily to Declines Caused by Commercial
`Fishing.
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`41. Oceanic whitetip sharks are top predators of the open ocean and play
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`an important role in maintaining a healthy ecosystem. They are long-lived, living
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`up to 36 years. Roaming far and wide, these highly migratory, solitary sharks are
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`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 16 of 25 PageID #: 16
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`found in tropical and subtropical waters across the world, including waters
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`surrounding Hawai‘i and American Samoa. Unfortunately, oceanic whitetip shark
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`populations have plummeted due to fishing in all regions the shark is found—by as
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`much as 88 percent from historical numbers in some regions.
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`42. Commercial fishing by U.S. and foreign national fleets has been the
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`main driver of this species’ significant population declines. Oceanic whitetip
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`sharks are targeted for their high-value fins. Both targeted and incidental capture of
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`oceanic whitetip sharks continue to threaten the species’ long-term survival.
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`43. Bycatch from the Hawai‘i deep-set longline fishery and American
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`Samoa longline fishery poses a major threat to the oceanic whitetip shark in the
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`Western and Central Pacific Ocean.
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`44. The oceanic whitetip shark is particularly vulnerable to fishing
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`pressure because of its biology and life history. Oceanic whitetip sharks grow
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`slowly, take a long time to reach reproductive maturity, and produce relatively few
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`offspring. Females generally do not reach maturity until they are 9 years of age and
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`only give birth every other year. The species also suffers from low genetic
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`diversity and declining size of individuals—factors that make it less resilient and
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`less productive.
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`45. On January 30, 2018, NMFS listed the oceanic whitetip shark as
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`threatened, largely due to excessive pressure from direct and unintentional catch in
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`15
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`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 17 of 25 PageID #: 17
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`fisheries. 83 Fed. Reg. 4153, 4153, 4162 (codified at 50 C.F.R. § 223.102(e))
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`(citing “overutilization from fishing pressure and inadequate regulatory
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`mechanisms” as primary reasons for listing the oceanic whitetip shark).
`
`II. NMFS Continues to Authorize Fisheries that Catch and Kill Oceanic
`Whitetip Sharks.
`
`46. NMFS continues to authorize multiple fisheries that catch and kill
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`oceanic whitetip sharks, including the Hawai‘i deep-set longline fishery and
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`American Samoa longline fishery.
`
`47. These fisheries primarily target tuna and swordfish, but also catch
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`large numbers of oceanic whitetip sharks as bycatch. A 2020 report by the Western
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`Pacific Fishery Management Council estimates that in 2019 alone, the Hawai‘i
`
`deep-set longline fishery incidentally caught an estimated 2,125 oceanic whitetip
`
`sharks; the American Samoa longline fishery took an estimated 870 oceanic
`
`whitetips in the same year. These two fisheries are estimated to have caught more
`
`than 6,500 oceanic whitetips between 2018 (when NMFS listed the species) and
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`2020 (the most recent year for which estimates are available).
`
`48. Significant numbers of oceanic whitetip sharks caught as bycatch in
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`longline gear die due to the physical trauma of being hooked and hauled to the
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`vessel or from physiological stress associated with the capture and handling
`
`process. This mortality can occur at the time of capture (at-vessel mortality) or
`
`after the shark is returned to sea (post-release mortality). Scientists have estimated
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`16
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`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 18 of 25 PageID #: 18
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`that approximately one-third or more of oceanic whitetip sharks die after being
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`caught as bycatch on longline gear.
`
`49. The best available scientific information shows that bycatch of
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`oceanic whitetip sharks in the Hawai’i deep-set longline fishery and American
`
`Samoa longline fishery has substantial adverse effects on—or, at the very least,
`
`“may affect”—the species. NMFS is required to complete consultation before
`
`continuing to authorize any fishery that may affect the oceanic whitetip shark.
`
`III. NMFS Has Not Completed ESA Consultation Regarding the Effects of
`the Hawai’i Deep-Set Longline and American Samoa Fisheries on the
`Oceanic Whitetip Shark.
`
`50. NMFS listed the oceanic whitetip shark under the ESA more than four
`
`years ago. In part due to the new listing, and recognizing that both fisheries may
`
`affect this threatened species, NMFS reinitiated consultation on the Hawai’i deep-
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`set longline fishery and American Samoa longline fishery on October 4, 2018, and
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`April 3, 2019, respectively. NMFS has not completed consultation for either
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`fishery, but has continued to authorize both fisheries.
`
`51. NMFS is both the action agency and the consulting agency in these
`
`consultations. Specifically, NMFS’s Office of Sustainable Fisheries is the action
`
`agency that authorizes and manages the Hawai’i deep-set longline and American
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`Samoa longline fisheries, and NMFS’s Office of Protected Resources is the
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`consulting agency.
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`17
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`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 19 of 25 PageID #: 19
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`52. On April 4, 2019, NMFS informed Plaintiffs that it expected to
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`complete the reinitiated formal consultations on the effects of the Hawai’i deep-set
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`longline and American Samoa longline fisheries on all listed species by July 2019,
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`and September 2019, respectively.
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`53. Plaintiffs’ counsel continued to communicate with NMFS
`
`representatives for nearly three years with the aims of spurring the agency to
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`complete the consultations and providing recommendations for measures to
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`include in the resulting biological opinions, while avoiding litigation. The agency
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`has repeatedly pushed back the anticipated completion dates for both consultations.
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`Most recently, in March 2022, it informed the Western Pacific Fishery
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`Management Council that the consultations would not be completed by its most
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`recent deadline and did not provide any new anticipated date of completion.
`
`54. Four years after oceanic whitetip sharks were listed under the ESA
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`and three years after NMFS stated it would complete these consultations within a
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`matter of several months, the agency has not done so and has not provided any
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`assurance that it will complete them in any time frame. In the meantime, the
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`agency continues to allow unauthorized, unlimited take of oceanic whitetip sharks
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`in the Hawai’i deep-set and American Samoa longline fisheries.
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`18
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`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 20 of 25 PageID #: 20
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`CLAIMS FOR RELIEF
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`Count I – Violation of ESA Section 7(a)(2) Duties to Complete Consultation
`and Ensure Against Jeopardy (16 U.S.C. § 1536(a)(2))
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`55. Paragraphs 1‒54 are incorporated herein by reference.
`
`56. Section 7(a)(2) of the ESA imposes a substantive duty on each federal
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`agency to “insure that any action authorized, funded, or carried out by such agency
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`. . . is not likely to jeopardize the continued existence of any endangered species or
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`threatened species.” 16 U.S.C. § 1536(a)(2). To comply with this duty, the ESA
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`and its implementing regulations require NMFS’s Office of Sustainable Fisheries
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`to complete consultation with NMFS’s Office of Protected Resources before taking
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`any action that “may affect” a listed species. Id.; 50 C.F.R. § 402.14(a).
`
`57. NMFS’s authorization of each individual fishery operating under the
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`Pelagic FEP, including the Hawai’i deep-set longline fishery and American Samoa
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`longline fishery, constitutes a federal agency “action” under the ESA. 50 C.F.R. §§
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`402.02, 402.03; Greenpeace v. NMFS, 80 F. Supp. 2d 1137, 1145 (W.D. Wash.
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`2000) (stating FMPs and their implementation “constitute on-going agency action
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`under the ESA”).
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`58. NMFS’s authorizations of the Hawai‘i deep-set longline fishery and
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`American Samoa longline fishery result in bycatch of oceanic whitetip sharks.
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`Therefore, the authorization of each fishery “may affect” the threatened oceanic
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`whitetip shark. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
`
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`19
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`Case 1:22-cv-00224-DKW-KJM Document 1 Filed 05/17/22 Page 21 of 25 PageID #: 21
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`59. Accordingly, NMFS is required to complete Section 7 consultation on
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`the effects of the Hawai‘i deep-set longline fishery and American Samoa longline
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`fishery on the oceanic whitetip shark prior to authorizing the operation of the
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`fisheries. NMFS also has a substantive duty as the action agency authorizing the
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`Hawai‘i deep-set longline fishery and American Samoa longline fishery to ensure
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`that its actions are not likely to jeopardize the continued existence of the oceanic
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`whitetip shark. 16 U.S.C. § 1536(a)(2).
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`60. NMFS has continued authorizing the Hawai‘i deep-set longline
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`fishery and American Samoa longline fishery in the period since it listed the
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`oceanic whitetip shark as threatened under the ESA. However, NMFS has not
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`completed consultation or obtained a biological opinion on these fisheries’ effects
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`on the species.
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`61.
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` NMFS therefore is in violation of its duties under the ESA and its
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`implementing regulations to complete the required consul
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