New Federal Court Lawsuit Challenging Non-Authorization of Incidental Taking of Humpback Whales

An association long line fishermen has filed suit in federal court in Hawaii against the National Marine Fisheries Service, alleging the agency has not authorized the incidental taking of humpback whales in Hawaiian waters.

The Complaint (filed Jan. 22, 2010) is posted here.here. The Complaint summarizes the lawsuit:

1. This civil action is brought by Plaintiff Hawaii Longline Association because Defendant National Marine Fisheries Service ("NMFS") has failed to issue required determinations and authorizations pursuant to Section 101(a)(5)(E) of the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1371(a)(5)(E), and Section 7(b)(4) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(b)(4), authorizing the incidental, but not the intentional, taking of humpback whales in the Hawaii-based commercial shallow-set (swordfish target) longline fishery ("shallow-set fishery").

2. Defendants' failure to issue an MMPA § 101(a)(5)(E) determination, and Defendants' related failure to issue incidental take authorization pursuant to ESA § 7(b)(4), are violations of mandatory duties pursuant to the MMPA and the ESA, constitute agency action unreasonably delayed and unlawfully withheld in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), and is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2).

3. Plaintiff seeks a declaration that Defendants have unreasonably delayed and unlawfully withheld agency action in violation of APA § 706(1), and that the failure to issue MMPA § 101 (a)(5)(E) and ESA § 7(b)(4) decisions and authorizations is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the MMPA, ESA and APA § 706(1). In addition, Plaintiff seeks to enjoin NMFS to make an MMPA § 101(a)(5)(E) determination, and to issue an incidental take authorization pursuant to ESA § 7(b)(4), in accord with an established, judicially-supervised, schedule.

If this looks like this is turning into an interesting case, I will follow it on the blog. Stay tuned.