Last year, the environmental group, Center for Biological Diversity (Center), brought suit against the U.S. Coast Guard for violations of the Endangered Species Act (ESA) relating to the execution of Coast Guard missions off the coast of California, (post here). Specifically, at issue were the Coast Guard's Traffic Separation Schemes (TSS) which are, in effect, shipping lanes used to separate inbound and outbound vessels. The three TSS's that were before the court were the Santa Barbara, Long Beach and San Francisco ones. The Centerasserted that the Coast Guard failed to consult with the National Marine Fisheries Service to determine the impact of TSS's on endangered blue whales.
The federal court in San Francisco dismissed the suit finding that the claimed ESA violations relating to the Long Beach and San Francisco TSS's lacked jurisdiction for failing to fulfill the ESA's procedural requirement of providing specific notice of an intention to bring suit. The Center's notice letter only discussed the Santa Barbara TSS.
As to the Santa Barbara TSS, the court found that the challenged action by the Coast Guard was not "ongoing," thereby finding the Center's claims to be stale or time-barred by the statute of limitation. The court further found that any Coast Guard operations related to the TSS (radio advisories, maintenance of aids to navigation) do not constitute "agency action" triggering a right to court review.
The court did give the Center a hint as to Round 2. In footnote 3, the court stated:
The absence of ongoing or new agency action, however, does not suggest a party such as plaintiff has no legal recourse where circumstances affecting listed species assertedly have changed. Rather, the law provides an appropriate vehicle for seeking such relief. In particular, a petition for new rulemaking may be filed, see 5 U.S.C. § 553(e), and, if the petition is denied, judicial review of such denial may be sought, see 5 U.S.C. § 704. Additionally, to the extent private parties are asserted to be in violation of the ESA by “tak[ing]” listed species, suit may be brought against such parties under § 9 of the ESA, 16 U.S.C. § 1538. Here, plaintiff filed a Petition for Emergency Rulemaking with NMFS (see Cummings Decl. Ex. A), which petition was denied (see id. Ex. D). There is no evidence in the record, however, suggesting plaintiff sought judicial review of such denial.
I have obtained copies of the pleadings which are available for download below:
Coast Guard's Motion for Summary Judgment; Center's Memorandum in Opposition; Coast Guard's Reply; Order Granting Motion for Summary Judgment; Final Judgment
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