Can a federal agency's failure to act, pursuant to its statutory authorities, constitute "agency action" under the Endangered Species Act, thereby triggering the agency's duty to consult?
This seems to be the threshold question to resolve in a recent lawsuit filed in California federal court. A California environmental group filed suit seeking an injunction against the Coast Guard for its failure to prevent whale strikes by vessels navigating in the Santa Barbara Channel.
The suit alleges that due to vessel collisions with blue whales, the whale population is at risk. The complaint states that the "Coast Guard has failed to fulfill its non-discretionary duty under the [Endangered Species Act] to ensure that ship traffic does not jeopardize the blue whale or any other endangered whale species."
The suit seeks to require the Coast Guard to consult with the National Marine Fisheries Service and in the meantime, adopt interim measures to protect the whales.
Under the Ports and Waterways Safety Act, the Coast Guard has the statutory authority to regulate vessel navigation. It will be interesting to see how the court treats a "failure to act" as an "agency action."
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