Humane Society of the United States, The et al v. National Marine Fisheries Service (NMFS) et al

Filing 1

COMPLAINT against All Defendants Filing fee: $ 350, receipt number 0101-3650457 (Fee Status: Filing Fee paid), filed by Defenders of Wildlife, Humane Society of the United States, The, Whale and Dolphin Conservation Society (North America), Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Category Sheet)(Ockene, Kimberly)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

THE HUMANE SOCIETY OF THE
UNITED STATES,
2100 L Street, NW
Washington, DC 20037,
DEFENDERS OF WILDLIFE,
1130 17th Street, NW
Washington, DC 20036,
WHALE AND DOLPHIN
CONSERVATION SOCIETY,
7 Nelson Street
Plymouth, MA 02360
Plaintiffs,
v.
NATIONAL MARINE FISHERIES
SERVICE,
Northeast Regional Office
55 Great Republic Drive
Gloucester, MA 01930,
ERIC SCHWAAB,
NOAA Assistant Administrator
for Fisheries
National Marine Fisheries Service
1315 East-West Highway
Silver Spring, MD 20910,
JOHN BRYSON,
Secretary of Commerce
U.S. Department of Commerce
14th Street & Constitution Ave., NW
Washington, DC 20230,
Defendants.

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Civ. No._________

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1.

Each year, critically endangered North Atlantic right whales and endangered

humpback, fin, and sei whales become entangled in commercial fishing gear. In these incidents,
fishing line wraps around whales’ heads, flippers, or tails, often impeding basic movement,
feeding, and reproduction, causing infection, and sometimes preventing the animals from
resurfacing, resulting in drowning.
2.

The North Atlantic right whale is one of the world’s most endangered large

whales, with an estimated population of less than 400 individuals. In fact, the National Marine
Fisheries Service (“NMFS”) has previously stated that the “loss of even a single individual may
contribute to the extinction of the species.” 69 Fed. Reg. 30,857, 30,858 (June 1, 2004). NMFS
has cited entanglements in commercial fishing gear as one of the most significant threats to the
right whale’s survival and recovery. Yet, almost every year since 2002, at least one entangled
right whale has been found dead or so gravely injured that death is deemed likely.
Entanglements also continue to threaten the recovery of endangered humpback, fin, and sei
whales.
3.

Nevertheless, and only after litigation over NMFS’s nine-year delay in

completing consultation, NMFS issued four biological opinions on October 29, 2010 that
conclude that the continued operation of four federal fisheries—the American Lobster Fishery,
the Northeast Multispecies Fishery, the Monkfish Fishery, and the Spiny Dogfish Fishery
(collectively, “the fisheries”)—is not likely to jeopardize the continued existence of any listed
species.

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4.

NMFS’s 2010 Biological Opinions all acknowledge that the operation of the

fisheries will result in the deaths and serious injuries of critically endangered right whales, as
well as endangered humpback, fin, and sei whales, yet none of the fisheries has received required
authorizations for these takings pursuant to the Endangered Species Act (“ESA”) or the Marine
Mammal Protection Act (“MMPA”).
5.

Indeed, so far in 2011 there have been at least seven new right whale

entanglements, ten new humpback entanglements, and at least two right whales have died from
entanglement-related injuries.
6.

The agency’s continued authorization of these fisheries that it acknowledges will

cause the take of endangered species without an incidental take statement violates Section 9 of
the ESA. 16 U.S.C. § 1538. The agency’s continued authorization of these fisheries that it
acknowledges will cause the take of marine mammals without a take authorization pursuant to
Section 101(a)(5)(E) of the MMPA, is also arbitrary and capricious, an abuse of discretion, and
otherwise not in accordance with the MMPA, in violation of the APA, 5 U.S.C. §§ 701–706.
7.

Furthermore, NMFS’s “no jeopardy” determinations in the 2010 Biological

Opinions were founded on the assumption that operation of the federal fisheries would result in
only one death or serious injury of right whales per year. However, since NMFS issued the 2010
Biological Opinions on October 29, 2010, at least six right whales are believed to have died, two
of whom died after being entangled in fishing gear.
8.

These recent deaths, serious injuries, and entanglements demonstrate that

NMFS’s key assumption underlying its “no jeopardy” finding for right whales is erroneous and
thus that its 2010 Biological Opinions are arbitrary, capricious, an abuse of discretion, or

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otherwise not in accordance with law, in violation of the Administrate Procedure Act. 5 U.S.C. §
706(2).
9.

Moreover, despite this new information revealing effects of the action that may

affect endangered whales to an extent not previously considered, NMFS has failed to reinitiate
consultation as to the effects of these fisheries on endangered whales, as required by the ESA’s
implementing regulations. 50 C.F.R. § 402.16(b). By failing to reinitiate consultation, NMFS
cannot meet its duty to insure that the continued operation of these federally-authorized fisheries
is not likely to jeopardize the continued existence of endangered whales, in violation of the ESA
and its implementing regulations. 16 U.S.C. §§ 1536(a)(2), 1536(b); 50 C.F.R. § 402.16.
10.

Plaintiffs seek an order of this Court compelling NMFS to (1) reinitiate and

complete consultation regarding the effects of the American Lobster, Northeast Multispecies,
Monkfish, and Spiny Dogfish Fisheries on endangered North Atlantic right whales, humpback
whales, fin whales, and sei whales, in order to insure the fisheries are not likely to jeopardize the
species’ continued existence as required by the ESA, (2) complete the analyses necessary to
determine whether take of these endangered whales may be legally authorized pursuant to the
ESA and MMPA, and (3) require operation of the fisheries in compliance with any mitigation
measures necessary to insure compliance with both the ESA and the MMPA .
JURISDICTION AND VENUE
11.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, which

grants the district courts original jurisdiction over “all civil actions arising under the . . . laws . . .
of the United States.”

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12.

Pursuant to 16 U.S.C. § 1540(g)(2)(C), Plaintiffs provided the Secretary of

Commerce with notice of its ESA violations on April 29, 2011, more than 60 days prior to the
commencement of the First and Fourth Claims for Relief.
13.

Venue in this Court is proper under 28 U.S.C. § 1391(e).
PARTIES

14.

Plaintiff The Humane Society of the United States (“The HSUS”) is a non-profit

organization headquartered in Washington, D.C. The HSUS is the nation’s largest animal
protection organization, with over 11 million members and constituents, including over 300,000
members and constituents who reside in the Commonwealth of Massachusetts. The HSUS is
committed to the goals of protecting, conserving, and enhancing the nation’s wildlife and
wildlands, and fostering the humane treatment of all animals. In furtherance of these goals and
objectives, The HSUS and its members have demonstrated a strong interest in the conservation
and humane treatment of marine mammals, including the North Atlantic right, humpback, fin,
and sei whales. For example, The HSUS has served as a member of the Atlantic Large Whale
Take Reduction Team since its inception in 1996, actively participating in efforts to protect large
whales from entanglement in fishing gear.
15.

The HSUS brings this action on behalf of itself and its members, who regularly

engage in educational, recreational, and scientific activities involving right, humpback, fin, and
sei whales. Many HSUS members live in close proximity to and frequently visit various portions
of the Atlantic coast and regularly view or attempt to view these whales. HSUS members
regularly whale watch both from the shore and from boats, including commercial whale
watching vessels. HSUS members plan to continue to observe these whale species in the future.

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16.

Plaintiff Defenders of Wildlife (“Defenders”) is a national non-profit organization

dedicated to the protection and restoration of all native wild animals and plants in their natural
communities. Based in Washington, D.C., and with offices spanning from Florida to Alaska,
Defenders has nearly one million members and supporters across the nation, including over
142,000 members in states along the Atlantic Coast of the United States where right, humpback,
fin, and sei whales live, feed, breed, and migrate. Defenders is a leader in the conservation
community’s efforts to protect and recover these endangered whale species.
17.

Defenders brings this action on behalf of its members, many of whom enjoy

observing, photographing, and appreciating Atlantic large whales in the wild, and studying the
species in their natural habitats. Defenders’ members regularly engage in these activities in
various locations along the Atlantic Coast and will continue to do so in the future.
18.

Plaintiff Whale and Dolphin Conservation Society (“WDCS”) is the world’s

largest organization dedicated solely to the protection of whales, dolphins, porpoises, and
their environment. WDCS has offices in the U.K., U.S., Australia, and Germany with over
80,000 supporters world-wide. WDCS is internationally recognized as a respected source of
information for the scientific, biological, political, and legal aspects of cetacean protection.
WDCS actively campaigns against practices harmful to cetaceans and their habitat through
conservation, research, education programs, and legal advocacy. WDCS and its supporters have
worked extensively to preserve critically imperiled North Atlantic right whales and the habitat
upon which they depend.
19.

WDCS brings this action on behalf of its members, many of whom enjoy

observing, photographing, and appreciating North Atlantic right whales, as well as humpback,
fin and sei whales in the wild, and studying the species in their natural habitats. WDCS works

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with commercial whale watching companies through its Whale SENSE program and WDCS
members and interns also regularly whale watch from land and water. WDCS members
regularly comment on federal register notices regarding the protection and conservation of North
Atlantic right whales and other endangered whales.
20.

Defenders’, HSUS’s, and WDCS’s members’ derive scientific, recreational,

health, conservation, spiritual, and aesthetic benefits from endangered whales. Their interests in
observing, studying, and appreciating these species are harmed by Defendants’ failure to comply
with the ESA, MMPA, and APA. NMFS has acknowledged that reducing the number of right,
humpback, fin, and sei whale entanglements is essential to each species’ survival and recovery.
Defendants are threatening the already-fragile existence of endangered North Atlantic right,
humpback, fin, and sei whales by undermining and denying much-needed protections for these
whales and by authorizing actions that result in take of the species. These violations and their
contribution to the continued stalled recovery of right, humpback, fin, and sei whales harm, and
will continue to harm, Plaintiffs’ and their members’ interests in the conservation of these
species.
21.

Plaintiffs’ and their members’ injuries will be redressed by an order of this Court

compelling NMFS to complete the required ESA and MMPA analyses regarding the effects of
the American Lobster, Northeast Multispecies, Monkfish, and Spiny Dogfish Fisheries on
endangered North Atlantic right, humpback, fin, and sei whales, and insure that operation of the
fisheries are conducted in compliance with any mitigation measures necessary for compliance
with the ESA and MMPA.
22.

Defendant National Marine Fisheries Service (“NMFS”) is the agency within the

U.S. Department of Commerce’s National Oceanic and Atmospheric Administration to which

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the Secretary of Commerce has delegated the authority to conserve and manage most endangered
and threatened marine species pursuant to the ESA and the MMPA. NMFS is also the agency to
which the Secretary of Commerce has delegated the authority to manage federal fisheries
pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”).
23.

Defendant Eric Schwaab is the Assistant Administrator for Fisheries at NMFS,

and has responsibility for implementing and fulfilling the agency’s duties under the ESA, the
MMPA, and the MSA. Mr. Schwaab is sued in his official capacity.
24.

Defendant John Bryson is the Secretary of Commerce and has ultimate

responsibility for the programs of NMFS. Secretary Bryson is sued in his official capacity.
25.

Collectively, Defendants named in Paragraphs 22 through 24 shall be referred to

as “Defendants” or “NMFS” in this complaint.
LEGAL BACKGROUND
The Endangered Species Act
26.

In enacting the ESA, Congress recognized that certain species “have been so

depleted in numbers that they are in danger of or threatened with extinction” and made it “the
policy of Congress that all Federal . . . agencies shall seek to conserve endangered species and
threatened species and shall utilize their authorities in furtherance of the purposes” of the Act.
16 U.S.C. § 1531(a)(2), (c)(1). The ESA defines “conservation” to mean “the use of all methods
and procedures which are necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this [Act] are no longer necessary.” Id. §
1532(3). The principal duties that the ESA assigns to the Secretary of Commerce for protecting
marine species have been delegated to NMFS. 50 C.F.R. § 222.101(a).

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27.

Under the ESA, a species is listed as “endangered” where it is “in danger of

extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). Once listed,
a species is entitled to a number of protections, including both prohibitions on harm and
affirmative duties to promote the species’ conservation and recovery.
28.

Specifically, Section 9 of the ESA prohibits any person from “taking” an

endangered species, with limited exceptions. Id. § 1538(a)(1)-(2). A “person” includes private
parties as well as local, state, and federal agencies. 16 U.S.C. § 1532(13). “Take” is defined
broadly under the ESA to include harming, harassing, trapping, capturing, wounding, or killing a
protected species either directly or by degrading its habitat sufficiently to impair essential
behavior patterns. Id. § 1532(19). The ESA prohibits the acts of parties directly causing a take
as well as the acts of third parties, such as governmental agencies, whose acts authorize or
otherwise bring about the taking. Id. § 1538(g).
29.

In addition, Section 7(a)(2) of the ESA requires federal agencies to “insure that

any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the
continued existence of any endangered species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
30.

To comply with Section 7(a)(2)’s substantive mandate, federal agencies must

consult with NMFS or the United States Fish and Wildlife Service whenever their actions “may
affect” a listed species and utilize the “best scientific and commercial data available” in doing so.
16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
31.

Where, as here, NMFS is both the action agency and the consulting agency,

different branches of NMFS must undertake intra-agency consultation. Specifically, NMFS
Sustainable Fisheries Division, which takes the action of authorizing the federal fisheries, must
consult with NMFS Protected Resources Division. The result of this consultation is the

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Protected Resources Division’s preparation of a “biological opinion” that describes the expected
impact of the operation of the American Lobster, Northeast Multispecies, Spiny Dogfish, and
Monkfish Fishery on listed species, including endangered whales. 16 U.S.C. § 1536(b); 50
C.F.R. § 402.14.
32.

The biological opinion must include a summary of the information on which the

opinion is based, an evaluation of “the current status of the listed species,” the “effects of the
action,” and “cumulative effects.” 50 C.F.R. § 402.14(g)(2)-(3). “Effects of the action” include
both direct and indirect effects of an action “that will be added to the environmental baseline.”
Id. § 402.02 (emphasis added). The environmental baseline includes “the past and present
impacts of all Federal, State or private actions and other human activities in the action area, the
anticipated impacts of all proposed Federal projects in the action area that have already
undergone formal or early section 7 consultation, and the impact of State or private actions
which are contemporaneous with the consultation in process.” Id. Cumulative effects include
“future State or private activities, not involving Federal activities, that are reasonably certain to
occur within the action area.” Id. Thus, NMFS must consider not just the proportional share of
responsibility for impacts to the species traceable to the activity that is the subject of the
biological opinion, but the effects of that action when added to all other activities and influences
that affect the status of that species.
33.

After the consulting agency has added the direct and indirect effects of the action

to the environmental baseline and cumulative effects, the consulting agency must make its
determination of “whether the action is likely to jeopardize the continued existence of a listed
species.” Id. § 402.14(h); 16 U.S.C. § 1536(b)(3)-(4). A likelihood of jeopardy is found when
“an action [] reasonably would be expected, directly or indirectly, to reduce appreciably the

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likelihood of both the survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.
34.

A biological opinion that concludes that the agency action is not likely to

jeopardize the continued existence of a listed species but will result in take incidental to the
agency action, also must include an incidental take statement (“ITS”). 16 U.S.C. § 1536(b)(4).
The ITS specifies the impact of any expected takes of individual members of the species,
provides reasonable and prudent measures necessary to minimize the impact of those takes, and
sets forth terms and conditions that must be followed to insure against jeopardy. Id. §
1536(b)(4); 50 C.F.R. §§ 402.14(i)(1), (3). When those listed species are marine mammals,
however, the take must first be authorized pursuant to the Marine Mammal Protection Act. Id.
The take of a listed species in compliance with the terms of an ITS is not a prohibited take under
Section 9 of the ESA. 16 U.S.C. §§ 1536(b)(4) and (o)(2); 50 C.F.R. § 402.14(i)(5).
35.

If NMFS determines in its biological opinion that the action is likely to jeopardize

the continued existence of a listed species, the biological opinion must outline “reasonable and
prudent alternatives” to the action, if any exist, that will avoid jeopardy. 16 U.S.C.
1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3).
36.

Finally, the action agency has a continuing duty to insure against jeopardy under

Section 7(a)(2). After the issuance of a final biological opinion and “where discretionary Federal
involvement or control over the action has been retained or is authorized by law,” the
agency must reinitiate formal consultation if, inter alia, : “(a) the amount or extent of taking
specified in the incidental take statement is exceeded;” or “(b) new information reveals effects of
the action that may affect a listed species. . . in a manner or to an extent not previously
considered.” 50 C.F.R. § 402.16 (emphasis added).

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The Marine Mammal Protection Act
37.

Recognizing that “certain species and population stocks of marine mammals are,

or may be, in danger of extinction or depletion as a result of man’s activities,” Congress passed
the MMPA in 1972 to insure that marine mammals are “protected and encouraged to develop to
the greatest extent feasible.” 16 U.S.C. § 1361(1), (6). The central purpose of the MMPA is to
prevent marine mammal stocks from falling below their “optimum sustainable population”
levels, defined as the “number of animals which will result in the maximum productivity of the
population or the species, keeping in mind the carrying capacity of the habitat and the health of
the ecosystem of which they form a constituent element.” Id. §§ 1361(2), 1362(9).
38.

To promote these objectives, the MMPA establishes a general moratorium on the

taking of all marine mammals, 16 U.S.C. § 1371(a), expressly prohibits the unauthorized take of
a marine mammal by any person, id. § 1372(a), and specifically requires NMFS to “prevent the
depletion” of marine mammals from incidental take by commercial fisheries. Id. § 1387(f)(1).
Prohibited takings include actions that kill or injure marine mammals or disrupt behavioral
patterns, such as migration, breathing, breeding, or feeding. 16 U.S.C. § 1362(13), (18).
39.

A limited exemption for the incidental take of endangered marine mammals in the

course of commercial fishing operations is provided for by Sections 101(a)(5) and 118 of the
MMPA if specifically authorized by NMFS after the agency makes certain findings. Id. §§
1387(a)(2); 1371(a)(5)(E).
40.

Under Section 101(a)(5), NMFS can authorize the incidental take of listed marine

mammals by commercial fishing operations for a three-year period provided it first finds, after
public notice and comment, that the taking will have a “negligible impact” on the species, a

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recovery plan has been or is being developed under the ESA, and, if required by Section 118, a
monitoring plan and a take reduction plan are in place. Id. § 1371(a)(5)(E).
41.

A negligible impact is one that “cannot be reasonably expected to, and is not

reasonably likely to, adversely affect the species or stock through effects on annual rates of
recruitment or survival.” 50 C.F.R. § 216.103.
42.

Section 118, in turn, requires NMFS to develop a Take Reduction Plan (“TRP”)

for each “strategic stock” of marine mammals, including any ESA listed species. Id. §§
1387(f)(2); 1362(19). The TRP is developed to reduce incidental take from commercial fisheries
to below the potential biological removal level (“PBR”) and to eventually reach the MMPA’s
zero mortality rate goal. Id. § 1387(f)(2). PBR is the maximum number of animals, not
including natural mortalities, who may be removed from a marine mammal stock while allowing
that stock to reach or maintain its optimum sustainable population. 16 U.S.C. § 1362(20).
Additionally, NMFS must amend the TRP as necessary to meet the requirements of the MMPA.
Id. § 1387(f)(7)(F).
43.

Since 1997, the Atlantic Large Whale TRP has operated to reduce commercial

fishing impacts on right, humpback, and fin whales. See 50 C.F.R. § 229.32. All fisheries that
cause either frequent or occasional mortality or serious injury to Atlantic large whales must
comply with the Atlantic Large Whale TRP. 16 U.S.C. § 1387(c)(3)(A)(iv); see also 75 Fed.
Reg. 68,468 (Nov. 8, 2010) (listing fisheries that must comply in 2011).
44.

NMFS has adopted five criteria for making the requisite negligible impact

determination. See 75 Fed. Reg. 8,305, 8,307–8,308 (Feb. 24, 2010). Under these criteria: (1) if
the total amount of human-related serious injuries and mortalities are less than ten percent of
PBR, NMFS would consider incidental take from fisheries to be a negligible impact; (2) if total

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human-related serious injuries and mortalities are greater than PBR, and fisheries-related
mortality is less than ten percent of PBR, NMFS would consider incidental take from fisheries to
be a negligible impact if management measures are being taken to address non-fisheries-related
serious injuries and mortalities; (3) if total fisheries-related serious injuries and mortalities are
greater than ten percent of PBR and less than PBR and the population is stable or increasing,
NMFS would consider incidental take from fisheries to be a negligible impact subject to
individual review and certainty of data; (4) if the population abundance of a stock is declining,
the threshold level of ten percent of PBR will continue to be used, however if a population is
declining despite limitations on human-related serious injuries and mortalities below the PBR
level, a more conservative criterion is warranted; and finally; (5) total fisheries-related serious
injuries and mortalities greater than PBR cannot be considered a negligible impact. Id.
45.

Despite the existence of the TRP, NMFS has never made the required MMPA

Section 101(a)(5) “negligible impact” findings necessary to authorize the incidental take of right,
humpback, fin, and sei whales by the fisheries covered by the TRP.
Fishery Management Acts
46.

Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act

(“MSA”), regional fishery management councils propose fishery management plans (“FMPs”) to
regulate catch in U.S. federal waters (3 to 200 nautical miles offshore). 16 U.S.C. § 1801(b)(4).
NMFS’s MSA regulations implementing the Northeast Multispecies, Monkfish, and Spiny
Dogfish FMPs require fishing vessels to obtain a new permit each year in order to operate in
federal waters. 50 C.F.R. § 648.4(a).
47.

In addition to regulation pursuant to the MSA, the American Lobster Fishery is

also regulated pursuant to the Atlantic Coastal Fisheries Cooperative Management Act

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(“ACFCMA”), which coordinates coastal fisheries management in state waters. 16 U.S.C. §
5101 et seq. NMFS has adopted ACFCMA regulations for the Lobster Fishery requiring that all
vessels obtain an annual permit to fish in federal waters. 50 C.F.R. § 697.4(a), (g).
The Administrative Procedure Act
48.

The Administrative Procedure Act (“APA”) provides that “[a] person suffering

legal wrong because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.
NMFS’s 2010 Biological Opinions are agency actions within the meaning of the APA.
49.

The APA requires the reviewing court to “hold unlawful and set aside agency

action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. § 706(2).
FACTUAL BACKGROUND
Endangered Atlantic Large Whales
50.

The North Atlantic right whale, the humpback whale, the fin whale, and the sei

whale are each endangered species impacted by the American Lobster, Northeast Multispecies,
Spiny Dogfish, and Monkfish Fisheries through entanglement in fishing gear. Entanglement can
result in immediate death from drowning. In a significant number of cases, however, the animals
die over an extended time period as they become incapacitated by injuries or infections caused
by the entanglement. Gear often wraps whales’ flippers, mouths, and tails and, particularly in
growing animals, cinches tighter over time. Such injury often results in major tissue and bone
damage and systemic infection. During this time the animals often lose weight, causing them to
sink when dead so that death from entanglement is often under-reported as a cause of death.

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Scientists consider fishing gear entanglement to be a significant concern for large whales in
terms of both species conservation and animal welfare.
51.

With a population of less than 400 individuals, the North Atlantic right whale

(Eubalaena glacialis) is one the “the world’s most critically endangered large whale species and
one of the world’s most endangered mammals.” 73 Fed. Reg. 60,173 (Oct. 10, 2008). Although
the right whale has been listed as endangered since 1970, the species has not recovered. See e.g.,
NMFS, Recovery Plan for the North Atlantic Right Whale (Eubalaena glacialis) (Aug. 2004) at
III-1 (“North Atlantic right whales face a high risk of extinction into the foreseeable future”).
NMFS has identified entanglement in commercial fishing gear and ship strikes as the two
primary anthropogenic factors retarding the North Atlantic right whale’s recovery. Id. at v.
NMFS has repeatedly stated that the “loss of even a single individual may contribute to the
extinction of the species.” 69 Fed. Reg. at 30,858.
52.

According to the most recent Final Stock Assessment Report for the right whale,

approximately 75 percent of right whales are scarred at least once by fishing gear during their
lifetimes, and between 14 and 51 percent of right whales are “involved in entanglements” each
year. NMFS, 2010 Stock Assessment for the North Atlantic Right Whale (Eubalaena glacialis) at
13 (November 2010) (Right Whale SAR). The PBR for the right whale is currently 0.7 whales.
Id. at 11. However, due to a math error (which NMFS proposes correcting in the 2011 Draft
Stock Assessment Report), the PBR for the right whale should have been set at 0.4 whales. See
NMFS, 2011 Draft Stock Assessment for the North Atlantic Right Whale (Eubalaena glacialis) at
5 (April 2011). From 2004 to 2008, humans caused a minimum of 2.8 deaths or serious injuries
of right whales per year, 0.8 of which were attributed to entanglements in fishing gear per year.
Right Whale SAR at 12.

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53.

Since NMFS issued its 2010 Biological Opinions, at least four adult right whales

have died, two from injuries related to entanglement in fishing gear, one as the result of a ship
strike, and one whose cause of death could not be determined. Preliminary Results from FY
2011 Southeast U.S. Right Whale Aerial Surveys. Compiled by LTJG Gregory Schweitzer,
NOAA Corps and Barb Zoodsma, NOAA Fisheries Service. Provided via email to Southeast
Implementation Team. April 2011. NMFS believes that two right whale calves have also died—
one newborn who was found abandoned and one whose mother had died—bringing the total to
six dead right whales for 2011 alone. In addition, there have been at least seven reports of
previously unreported right whale entanglements. Center For Coastal Studies and NOAA/NMFS
2011. Atlantic Large Whale Disentanglement Network Update. Accessed October 21, 2011.
However, as NMFS admits in its Stock Assessments Reports and 2010 Biological Opinions,
many entanglement events go unobserved, so this is likely an underestimate.
54.

Endangered humpback whales (Megaptera novaeangliae) are also frequently

entangled in fishing gear. Humpback whales spend their summers feeding near the Northeast
coast of the United States, including the Gulf of Maine. Although most humpbacks migrate to
the West Indies for mating and calving during the winter, numerous humpbacks have recently
been sighted off the coast of the mid-Atlantic and Southeastern states during this time. NMFS
estimates the Gulf of Maine humpback whale population to be as low as 847 whales, and the
agency has set the PBR for this humpback stock at only 1.1 whales per year. NMFS, 2010 Stock
Assessment for the Gulf of Maine Stock of Humpback Whales at 23 (November 2010)
(Humpback SAR).
55.

From 2004 through 2008, NMFS determined the minimum annual rate of human-

caused death and serious injury to the Gulf of Maine humpback whale stock averaged 4.6

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animals per year, 3.0 of whom were killed or seriously injured due to entanglement—almost
three times the PBR. Id. Research using entanglement-related scarring indicates that between 48
to 65 percent of the Gulf of Maine humpback population has experienced entanglements. Id.
This same methodology indicates that the annual entanglement-related mortality rate of Gulf of
Maine humpback whales may be as high as 18.8 to 29.3 whales, depending on the assumptions
of population size. Robbins, et al. Estimating entanglement related mortality from scar-based
studies. 2009. Scientific Committee Meeting of the International Whaling Commission.
SC/611BC3). So far in 2011, NMFS has documented ten reports of previously unreported
humpback whale entanglements in fishing gear. Center For Coastal Studies and NOAA/NMFS
2011. Atlantic Large Whale Disentanglement Network Update. Accessed October 21, 2011.
56.

Entanglement also threatens endangered fin whales (Balaenoptera physalus) and

sei whales (Balaenoptera borealis). The North Atlantic fin whale, whose population ranges
from Nova Scotia to Cape Hatteras, includes only approximately 3,985 individual whales.
NMFS, 2010 Stock Assessment for the Fin Whale (Balaenoptera physalus) at 32 (November
2010). The 2010 Stock Assessment reports an increase in overall documented serious injury and
mortality to fin whales from 2004 to 2008, with an average mortality rate of 3.2 per year, 1.2
deaths of which were attributed to fishery entanglements each year. Id. Although the rate of
serious injury and mortality due to entanglements in fishing gear is below PBR for the species,
NMFS admits that the total level of human-caused serious injury and mortality is unknown. Id.
at 34.
57.

The estimated population of the Nova Scotia stock of sei whales (Balaenoptera

borealis borealis) is 386 individual whales, with a minimum population estimate of 208 whales.
NMFS, 2010 Stock Assessment for the Nova Scotia Stock of Sei Whales at 37–38 (November

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2010). Between 2004 and 2008, fisheries killed or seriously or seriously injured an estimated 0.6
sei whales per year, which is above the PBR of 0.4 whales. Id. at 38.
The Four Federal Fisheries Analyzed in the 2010 Biological Opinions
58.

Both trap/pot and gillnet fishing gear cause whale entanglements, and both the

vertical lines and groundlines associated with this fixed gear create entanglement risk.
Researchers have estimated that 56 percent of whales for which entangling gear could be
identified were entangled in vertical/buoy line, and 28 percent were entangled in groundline.
NMFS, FEIS for Amending the Atlantic Large Whale Take Reduction Plan at 2-41 (Aug. 2007).
59.

The American Lobster Fishery is the largest of the fixed-gear fisheries in the

Northeastern United States. The Fishery operates from 3 to 200 miles from shore in waters from
Maine through Cape Hatteras, North Carolina, with the primary area of harvest in the Gulf of
Maine in depths up to 40 meters. Although the Fishery uses multiple gear types, trap/pot gear
predominates, accounting for 98% of total landings between 1981 and 2007. Atlantic large
whales are in danger of entanglements from trap/pot gear because they feed and travel in many
of the same areas as the Fishery operates. The risk of entanglement occurs year-round, though
the risk may be greatest during the summer and fall, when both whales and the lobster gear are
the most concentrated in the same area.
60.

The Northeast Multispecies Fishery also occurs in federal waters from Maine to

Cape Hatteras, North Carolina. The Fishery encompasses fifteen different species of groundfish
and uses multiple types of gear to harvest the fish. Otter trawls are one of the primary gear
types, and gillnets, handlines, longlines, and fish pots are also used. Atlantic large whales are at
risk of becoming entangled in the lines and nets that comprise gillnet gear because the whales
feed, travel and breed in many of the same ocean areas in the Multispecies Fishery action area.

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61.

The Monkfish Fishery also occurs from Maine to Cape Hatteras, North Carolina,

with the peak fishing season between November and June. The types of gear predominately used
are bottom trawls and bottom gillnets. Trawl gear accounts for most of the landings in the
northern area (75% during 2000–2006), while gillnets account for the majority of the landings in
the southern area (54% during 2000–2006). Atlantic large whales are at risk of becoming
entangled in this gear throughout the season because whales feed, travel, and breed in many of
the same areas used by the Monkfish Fishery.
62.

Spiny Dogfish are most abundant from Nova Scotia to Cape Hatteras, North

Carolina and migrate seasonally, concentrating in U.S. waters during the fall through spring.
The Spiny Dogfish Fishery utilizes multiple gear types, though sink gillnets, bottom longlines,
and bottom otter trawls are the primary commercial fishing gear used, and these accounted for
approximately 96% of all dogfish landed in 2000-2004. Sink gillnets have been the dominant
gear type in the Spiny Dogfish Fishery according to NMFS landings data from 1988-1997.
NMFS has cited entanglements in gillnet gear as the greatest risk to whales from this Fishery.
Regulation of Fishery and Endangered Whale Interactions
63.

In 1997, NMFS adopted the first Atlantic Large Whale TRP to reduce commercial

fishing impacts on whales, as required by the MMPA. Fisheries regulated under the Northeast
Multispecies, Monkfish, and Spiny Dogfish FMPs, and the Lobster Interstate FMP, cause
frequent or occasional serious injury or death to right whales, humpback whales, and fin whales,
and therefore must comply with the Atlantic Large Whale TRP. 16 U.S.C. § 1387(c)(3)(A)(iv);
See 75 Fed. Reg. 68,468 (Nov. 8, 2010).
64.

Because NMFS Sustainable Fisheries Division authorizes the operation of these

fisheries through implementation of the various FMPs and the MMPA, NMFS Sustainable

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Fisheries Division as the action agency must consult with NMFS Protected Resources Division
as the expert agency regarding the effects of the fisheries on listed species and insure that the
fisheries are not likely to cause jeopardy under the ESA. 16 U.S.C. § 1536(a)(2).
65.

After a series of entanglements in the late 1990s, NMFS reinitiated ESA

consultation to consider how the Lobster, Northeast Multispecies, Monkfish, and Spiny Dogfish
Fisheries affect endangered whales. The consultation resulted in four similar biological
opinions, each concluding that existing conservation measures were inadequate to avoid the
likelihood of jeopardy to right whales by the fisheries. NMFS, Biological Opinion re:
Reinitiation of Consultation on the Federal Lobster Management Plan at 102 (June 14, 2001);
NMFS, Biological Opinion re: Authorization of fisheries under the Northeast Multispecies
Fishery Management Plan at 107 (June 14, 2001); NMFS, 2001 Biological Opinion re:
Authorization of fisheries under the Monkfish Fishery Management Plan at 118 (June 14, 2001);
NMFS, 2001 Biological Opinion re: Authorization of fisheries under the Spiny Dogfish Fishery
Management Plan at 102 (June 14, 2001).
66.

Because the 2001 Biological Opinions found a likelihood of jeopardy to right

whales, NMFS was required to adopt a “reasonable and prudent alternative” (“RPA”) that would
avoid this result. NMFS adopted the same RPA for each of the four fisheries, requiring fishing
gear modification at the times and places whales are present, as well as monitoring. The
monitoring requirements specified what events would cause the RPA to be deemed ineffective
and require reinitiation of consultation, in addition to the reinitiation criteria already established
by the ESA regulations.
67.

For example, in the 2001 Lobster Biological Opinion, NMFS stated that the RPA

would be deemed ineffective and reinitiation of consultation would be required if “a right whale

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[is] killed or seriously injured in (1) gear that is marked as being used in the lobster fishery, (2)
gear that is identifiable as being approved for use in a fishery authorized by the Lobster
Management Plan, . . . (3) gear that cannot be identified as being associated with a specific
fishery . . . [or (4)] [t]he estimated number of right whale entanglements in any gear or scarring .
. . increases or remains the same [in any given year] as the lowest annual level of the three
preceding years.” Id. at 105–106.
68.

Notably, even with the RPAs, the 2001 Biological Opinions did not authorize any

take of endangered whales. See e.g., 2001 Lobster BiOp at 109 (“the incidental take level is set
at zero (0) for marine mammals”). Rather, the 2001 Biological Opinions made clear that,
“[g]iven the current critical status of the right whale population and the aggregate effects of
human-caused mortality that has led to the species current status, the right whale population
cannot sustain incidental mortality caused by the Federal lobster fishery.” Id. at 101. NMFS
further recognized that it could not authorize any take pursuant to the MMPA because “the
incidental take of endangered whales currently cannot be authorized under” Section 101(a)(5).
Id. at 107. NMFS made these conclusions after finding that “any entanglement that causes
serious injury and mortality reduces appreciably the likelihood of survival and recovery of this
species.” Id. at 99.
69.

Despite the RPAs intended to avoid the take of even a single right whale, in 2002,

eight more right whales were found entangled; three resulting in serious injury or mortality. 70
Fed. Reg. 35,894, 35,895 (June 21, 2005). NMFS determined that one fatally entangled whale,
right whale #3107, was entangled in vertical line “consistent with gear approved for use in the
lobster industry.” Id. Based on the RPA monitoring criteria set out in the 2001 Lobster

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Biological Opinion, NMFS determined that the 2001 RPA was “not effective at avoiding the
likelihood of jeopardy” and reinitiated consultation on the Lobster Fishery. Id. at 35,896.
70.

Two of the other right whales found entangled in 2002, right whale #1815 and

right whale #3210, were deemed “seriously injured.” NMFS was unable to determine which
specific fishery the entangling gear was from, but the entanglements nonetheless triggered
reinitiation of consultation for all four fisheries pursuant to the 2001 RPA monitoring criteria.
71.

Due to continued entanglements and subsequent to litigation, NMFS amended the

Atlantic Large Whale TRP in 2007. 72 Fed. Reg. 57,104 (Oct. 5, 2007). NMFS again indicated
that it would reinitiate consultation regarding the operation of the fisheries based on the new
TRP amendments. Although the amendments required important conservation measures,
including the use of sinking groundline in many areas, NMFS acknowledged that further risk
reduction measures are necessary.
72.

With the exception of 2005, NMFS discovered at least one right whale suffering

serious injury or death as a result of entanglement each year since 2002, when the agency
originally reinitiated consultation on the four fisheries. In spite of these numerous serious
injuries and deaths triggering reinitiation of consultation, NMFS failed to complete consultation
for nine years until it issued the 2010 Biological Opinions on October 29, 2010, as required by a
settlement agreement with Plaintiffs.
The 2010 Biological Opinions
73.

NMFS’s Biological Opinions issued on October 29, 2010 analyzed the effects of

the continued operation of: (1) the Lobster Fishery, (2) the Northeast Multispecies Fishery, (3)
the Monkfish Fishery, and (4) the Spiny Dogfish Fishery. Each of the 2010 Biological Opinions
concludes that the continued operation of the particular fishery, in compliance with the

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requirements of the Atlantic Large Whale TRP, “is likely to adversely affect, but not jeopardize
the continued existence” of critically endangered North Atlantic right whales, as well as
endangered humpback, fin, and sei whales. NMFS, Endangered Species Act Section 7
Consultation on the Continued Implementation of Management Measures for the American
Lobster Fishery at 132 (Oct. 29, 2010) (2010 Lobster BiOp); NMFS, Endangered Species Act
Section 7 Consultation on the Continued Implementation of Management Measures for the
Northeast Multispecies Fishery at 165 (Oct. 29, 2010) (2010 Multispecies BiOp); NMFS,
Endangered Species Act Section 7 Consultation on the Continued Implementation of
Management Measures for the Monkfish Fishery at 148 (Oct. 29, 2010) (2010 Monkfish BiOp);
NMFS, Endangered Species Act Section 7 Consultation on the Continued Implementation of
Management Measures for the Spiny Dogfish Fishery at 150 (Oct. 29, 2010) (2010 Spiny
Dogfish BiOp).
74.

For these analyses, NMFS assumes that one right whale is seriously injured or

killed each year as the result of U.S. fisheries. However, because NMFS cannot attribute the
serious injury or mortality to a particular federal fishery, NMFS “assumes that the serious injury
or morality could and would occur as a result of the” particular fishery subject to the Biological
Opinion, but that no takes will occur from other fisheries. 2010 Lobster BiOp at 114; 2010
Multispecies BiOp at 141; 2010 Monkfish BiOp at 125; 2010 Spiny Dogfish BiOp at 128. As
indicated in Paragraph 53 above, the amount of right whale take assumed in the 2010 Biological
Opinions has already been exceeded.
75.

The 2010 Biological Opinions also assume that operation of U.S. fisheries will

result in the death or serious injury of humpback, fin, and sei whales each year. The 2010
Biological Opinions state that between 1999 and 2008, there was an average of 3.4 instances of

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death or serious injury to humpback whales from entanglement. However, NMFS also asserts
that because this number included undocumented gear types, which could include non-fishery
related gear such as anchor systems and mooring gear, a more accurate estimate of the serious
injury or mortalities to humpback whales from U.S. Fisheries is 2.4 humpbacks per year. The
2010 Biological Opinions also state that between 1999 and 2008, there were 0.8 documented
instances of serious injury or mortality to fin whales and 0.3 documented instances of serious
injury and mortality to sei whales. The 2010 Biological Opinions assume that the continued
operation of the federal fisheries will result in continued serious injury and mortality of fin and
sei whales, but will not exceed the 1999–2008 averages.
76.

Although the 2010 Biological Opinions find that the operation of these federal

fisheries will result in the take of endangered right, humpback, fin, and sei whales, they do not
authorize such take under the ESA pursuant to an Incidental Take Statement “because the
incidental take of ESA-listed whales has not been authorized under section 101(a)(5) of the
MMPA [16 U.S.C. § 1371(a)(5)(E)].” 2010 Lobster BiOp at 134; 2010 Multispecies BiOp at
167; 2010 Monkfish BiOp at 150; 2010 Spiny Dogfish BiOp at 153.
77.

As part of their analyses, each opinion also examines the actions’ impacts on

recovery of the species. In particular, each opinion specifically recognizes that “right whale
recovery is negatively affected by anthropogenic mortality” and that from 2003–2007, right
whales had the highest proportion of entanglement and ship strike events of any species of large
whale. 2010 Lobster BiOp at 20–21; 2010 Multispecies BiOp at 25; 2010 Monkfish BiOp at 18–
19; 2010 Spiny Dogfish BiOp at 18. The 2010 Biological Opinions reiterate the conclusion in
the revised Right Whale Recovery Plan that the most significant need for the right whale’s
recovery is “to reduce or eliminate deaths and injuries from anthropogenic activities, namely

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shipping and commercial fishing activities.” 2010 Lobster BiOp at 117; 2010 Multispecies BiOp
at 144; 2010 Monkfish BiOp at 128; 2010 Spiny Dogfish BiOp at 130. Similarly, anthropogenic
mortality of humpback whales “associated with fishing gear entanglements and ship strikes
remains significant.” 2010 Lobster BiOp at 27; 2010 Multispecies BiOp at 32; 2010 Monkfish
BiOp at 25; 2010 Spiny Dogfish BiOp at 24.
78.

NMFS also cites a number of risk reduction measures, including ship speed

restrictions and decreased fishing effort and assumes that such measures will help protect
endangered whales. However, NMFS fails to consider the times and areas that do not receive the
protection of ship speed restrictions, the impacts from exempted vessels, and the gross lack of
compliance with the speed restrictions in the places they do apply. Moreover, NMFS relies on a
number of non-regulatory risk reduction measures for risks from shipping, with which
compliance is completely voluntary, including for example, Areas to be Avoided and the
Dynamic Management Area Program. NMFS also fails to consider that while federal fishing
restrictions may lead to an overall decrease in federal fishing efforts, fishing is actually
increasing in areas in which whales are known to frequent. NMFS’s assumption that these
measures will be sufficiently protective of endangered whales is misplaced, as evidenced by a
series of recent deaths and injuries.
Significant Recent Events Since NMFS Issued the 2010 Biological Opinions
79.

A series of recent deaths and entanglements of endangered whales since NMFS

issued its 2010 Biological Opinions on October 29, 2010 not only underscores the fundamental
flaws in the assumptions on which NMFS based its conclusions in the 2010 Biological Opinions,
but also has triggered NMFS’s duty to reinitiate consultation.

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80.

On February 1, 2011 a right whale died from injuries related to entanglement in

fishing gear. On February 20, 2011 another right whale died whose cause of death could not be
determined. On March 16, 2011, a third right whale died from injuries related to entanglements
in fish gear. On March 27, 2011 a fourth right whale died as the result of a ship strike.
Preliminary Results from FY 2011 Southeast U.S. Right Whale Aerial Surveys. Compiled by
LTJG Gregory Schweitzer, NOAA Corps and Barb Zoodsma, NOAA Fisheries Service.
Provided via email to Southeast Implementation Team. April 2011. In addition, NMFS believes
that two right whale calves have also died—one who was found abandoned and one whose
mother had died—bringing the total to six dead right whales. Id.
81.

There were also four reports of previously unreported right whale entanglements:

on January 19, 2011 right whale #3010 was seen entangled; right whale #3712 was seen
entangled on January 30, 2011; right whale #3760 was seen entangled on February 13, 2011; and
another unidentified right whale was seen entangled “and thin” on February 13, 2011. Id.
82.

In addition, there were two reports of previously unreported humpback

entanglements, one on January 1, 2011 and humpback “EKG” on February 1, 2011. Id. NMFS,
2009–2011 Preliminary Large Whale Data. March 2, 2011.
83.

Despite these deaths, serious injuries and entanglements, NMFS failed to

reinitiate consultation as to the effects of its continued authorization of federal fisheries.
84.

Accordingly, on April 29, 2011, Plaintiffs sent NMFS notice of their intent to sue

NMFS for failing to insure that its actions do not jeopardize the continued existence of
endangered whales, as required by the ESA, and for causing the unauthorized take of endangered
whales.

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85.

Since Plaintiffs sent their notice letter, three more right whales have been seen

entangled in fishing gear for the first time. One right whale was seen entangled in gillnet gear on
September 19, 2011; right whale #3302 was seen entangled on September 26, 2011; and right
whale #3111, was seen entangled in line on September 27, 2011. Right whale #3893, who was
seen entangled on April 19, 2011, was believed to be gear free as of May 5, 2011. Center For
Coastal Studies and NOAA/NMFS 2011. Atlantic Large Whale Disentanglement Network
Update. Accessed October 21, 2011.
86.

In addition, eight humpback whales have been seen entangled in fishing gear for

the first time. These events occurred on June 1, 2011; July 8, 2011; July 11, 2011; July 12, 2011;
September 15, 2011; September 30; 2011; and October 10, 2011. Id.
87.

In sum, since NMFS issued its 2010 Biological Opinions, at least six right whales

have died, two of whom died from entanglement-related injuries, and seven have been entangled
in fishing gear for the first time. At least ten humpback whales have also been entangled in
fishing gear for the first time. However, as NMFS admits, this is likely an underestimate due to
the fact that many entanglement events go unobserved.
88.

Even though these recent deaths, serious injuries, and entanglements constitute

new information triggering reinitiation of consultation, NMFS has yet to reinitiate or complete
consultation on the continued operation of the Lobster, Northeast Multispecies, Monkfish, or
Spiny Dogfish Fisheries.

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CLAIMS FOR RELIEF
First Claim for Relief
Violation of the ESA
(Illegal Take of Endangered Species)
89.

Plaintiffs re-allege and incorporate, as if fully set forth herein, each and every

allegation in the preceding paragraphs of this complaint.
90.

Section 9 of the ESA prohibits NMFS from authorizing activities that cause the

unauthorized take of endangered species. 16 U.S.C. § 1538(g).
91.

The 2010 Biological Opinions acknowledge that take of four species of

endangered whales—North Atlantic right whales, humpback whales, fin, and sei whales—will
occur through operation of the fisheries, but do not include an Incidental Take Statement
authorizing that take. Thus, by authorizing the federal Lobster, Northeast Multispecies, Spiny
Dogfish, and Monkfish Fisheries NMFS is “caus[ing]” the unauthorized take of endangered
North Atlantic right whales, humpback whales, fin, and sei whales, in violation of Section 9 of
the ESA, 16 U.S.C. § 1538(g).
Second Claim for Relief
Violations of the MMPA and APA
(Illegal Take of Marine Mammals)
92.

Plaintiffs re-allege and incorporate, as if fully set forth herein, each and every

allegation in the preceding paragraphs of this complaint.
93.

The MMPA prohibits the unauthorized take of marine mammals. 16 U.S.C. §§

1371(a); 1372(a). Section 101(a)(5)(E) and Section 118 contain a limited exception to this
otherwise broad prohibition whereby NMFS can authorize the incidental take of marine
mammals by commercial fishing operations, provided NMFS first finds that, inter alia, such take

29

will have a “negligible impact” upon the species or stock of animals to be taken. 16 U.S.C. §§
1371(a)(5)(E); 1387(a)(2).
94.

The 2010 Biological Opinions acknowledge that take of four species of

endangered marine mammals—North Atlantic right whales, humpback whales, fin, and sei
whales—will occur through operation of the American Lobster, Northeast Multispecies, Spiny
Dogfish, and Monkfish Fisheries. However, NMFS has not made the requisite negligible impact
determination nor authorized the incidental take of right, humpback, fin, and sei whales by these
fisheries as required by Section 101(a)(5)(E) and Section 118 of the MMPA.
95.

In order to make such a finding, NMFS would have to determine that the take

“cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or
stock through effects on annual rates of recruitment or survival.” 50 C.F.R. § 215.203.
However, NMFS cannot currently make such a finding for any of the endangered whales taken
by operation of the federal fisheries, absent the adoption of additional conservation measures.
Indeed, as NMFS has previously admitted in various Stock Assessment Reports, it cannot make
the negligible impact finding for right whales because no mortality or serious injury of the stock
can be considered insignificant and it cannot make the finding for the Gulf of Maine humpback
whale because the total fisheries-related serious injuries and mortalities are greater than PBR.
Nor can NMFS make the negligible impact finding for fin or sei whales because the total federal
fishery-related mortality and serious injury is not less than 10 percent of the calculated PBR.
96.

NMFS’s authorization of the operation of these federal fisheries without

incidental take authorization under Section 101(a)(5)(E) is arbitrary, capricious, an abuse of
discretion, and not in accordance with the MMPA, in violation of the APA. 5 U.S.C. § 706(2).

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Third Claim for Relief
Violations of the ESA and APA
(Arbitrary and Capricious Biological Opinion)
97.

Plaintiffs re-allege and incorporate, as if fully set forth herein, each and every

allegation in the preceding paragraphs of this complaint.
98.

Since NMFS issued the 2010 Biological Opinions on October 29, 2010, at least

six right whales are thought to have died, two of whom died after being entangled in fishing gear.
Preliminary Results from FY 2011 Southeast U.S. Right Whale Aerial Surveys. Compiled by
LTJG Gregory Schweitzer, NOAA Corps and Barb Zoodsma, NOAA Fisheries Service.
Provided via email to Southeast Implementation Team. April 2011. Additionally, at least seven
right whales have been entangled in fishing gear for the first time. Center For Coastal Studies
and NOAA/NMFS 2011. Atlantic Large Whale Disentanglement Network Update. Accessed
October 21, 2011. However, NMFS’s “no jeopardy” determinations were based on the
assumption that operation of the federal fisheries would result in only one death or serious injury
of right whales per year. These recent deaths, serious injuries, and entanglements demonstrate
that NMFS’s key assumption is erroneous.
99.

These events also demonstrate that NMFS’s other assumptions in the documents,

including its reliance on the benefits of ship speed restrictions and decreased fishing efforts in its
evaluation of the environmental baseline and cumulative effects analysis, are misplaced.
100.

NMFS’s 2010 Biological Opinions and its “no jeopardy” findings are arbitrary

and capricious, and not in accordance with law, in violation of the APA. 5 U.S.C. § 706(2).

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Fourth Claim for Relief
Violations of the ESA
(Failure to Insure Against Jeopardy)
101.

Plaintiffs re-allege and incorporate, as if fully set forth herein, each and every

allegation in the preceding paragraphs of this complaint.
102. The deaths of endangered large whales that have occurred since NMFS issued the
2010 Biological Opinions on October 29, 2010 constitute “new information” that reveal “effects
of the action that may affect” endangered whales “to an extent not previously considered” in the
2010 Biological Opinions and trigger the requirement that NMFS reinitiate formal consultation.
50 C.F.R. § 402.16(b) (emphasis added).
103. NMFS has retained discretionary involvement or control over the federallyauthorized Lobster, Northeast Multispecies, Monkfish, and Spiny Dogfish Fisheries.
104.

NMFS is in violation of Section 7(a)(2) of the ESA and its implementing

regulations for failing to insure that the Lobster, Northeast Multispecies, Monkfish, and Spiny
Dogfish Fisheries are not likely to jeopardize the continued existence of endangered North
Atlantic right, humpback, fin, and sei whales.16 U.S.C. §§ 1536(a)(2), 1536(b); 1540(g)(1)(A);
50 C.F.R. § 402.16(b).

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
1. Find and declare that NMFS’s continued authorization of the Lobster, Northeast
Multispecies, Monkfish, and Spiny Dogfish fisheries violates Section 9 of the ESA by
unlawfully “caus[ing]” the unauthorized take of endangered species, 16 U.S.C. §
1538(g);
32

2. Find and declare that NMFS’s continued authorization of the American Lobster,
Northeast Multispecies, Monkfish, and Spiny Dogfish Fisheries without a take
authorization under the MMPA, 16 U.S.C. § 1371(a)(5)(E), is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law, in violation of the APA,
5 U.S.C. § 706(2);
3. Find and declare that NMFS’ 2010 Biological Opinions and their “no jeopardy”
findings are arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, in violation of the APA, 5 U.S.C. § 706(2).
4. Find and declare that NMFS is in violation of its duty under the ESA to insure that its
continued authorization of the Federal Lobster, Northeast Multispecies, Monkfish,
and Spiny Dogfish Fisheries is not likely to jeopardize the continued existence of any
ESA-listed species, 16 U.S.C. § 1536(a)(2);
5. Order NMFS, through an injunction, to immediately reinitiate Section 7 consultation
regarding the impacts of the federal Lobster, Northeast Multispecies, Monkfish, and
Spiny Dogfish Fisheries on North Atlantic right whales, humpback whales, fin whales
and sei whales, and issue new, legally valid biological opinions by a date certain;
6. Order NMFS, through an injunction, to immediately undertake the “negligible
impact” analysis required by the MMPA, 16 U.S.C. § 1371(a)(5)(E), by a date
certain;
7. Order NMFS, through an injunction, to implement any mitigation measures necessary
to insure operation of the fisheries in compliance with the ESA, 16 U.S.C. §
1536(a)(2), and the MMPA, 16 U.S.C. § 1371(a)(5)(E), by a date certain;

33

8. Award Plaintiffs their fees, costs, expenses, and disbursements, including reasonable
attorneys’ fees, associated with this litigation, as provided by 16 U.S.C. § 1540(g)(4)
and 28 U.S.C. § 2412; and
9. Grant such additional relief as the Court deems just and proper.
DATE: October 31, 2011
Respectfully Submitted,
/s/ Kimberly D. Ockene
Kimberly D. Ockene
MA BBO #638097
Senior Attorney
The Humane Society of the United States
131 Windermere Rd.
Auburndale, MA 02466
[phone]
[e-mail]
Counsel for Plaintiffs

34