On Tuesday, the Conservation Council of Hawai’i (CCH) and Michael Nakachi filed an action against the National Marine Fisheries Service (NMFS), the National Oceanic and Atmospheric Administration (NOAA) and Gina Raimondo, in her capacity as the Secretary of the United States Department of Commerce (Collectively, Defendants). Plaintiffs allege that Defendants have failed to protect the oceanic whitetip shark in accordance withe the requirements of the Endangered Species Act (ESA).
Plaintiffs allege that the CCH is the “Hawai’i affiliate of the National Wildlife Federation” and is dedicated to protecting species native to Hawaii and restoring local ecosystems. Plaintiffs also detail Mr. Nakachi’s many years of advocacy and educational efforts in the conservation area, particularly regarding sharks.
Plaintiffs allege that both defendant agencies are in the Department of Commerce, led by Secretary Raimondo, and are charged with responsibilities under the ESA and the Magnuson-Stevens Fishery Conservation and Management Act, “which governs federal fishery management.” According to Plaintiffs, the NOAA is the agency with supervisory authority over the NMFS, which in turn is responsible for managing federal fisheries and implementing the ESA “with respect to “certain marine species.”
Plaintiffs allege that “The ESA and its implementing regulations establish an interagency consultation process to assist federal agencies in complying with their substantive duty to avoid jeopardy under the ESA,” which process requires an “action agency, whenever it takes an action that may affect a threatened or endangered species [such as the oceanic whitetip shark] or critical habitat to consult with the appropriate wildlife agency to determine whether the action may cause jeopardy.” According to Plaintiffs, “At the conclusion of consultation, an action agency will either obtain written concurrence from the consulting agency that the proposed action is ‘not likely to adversely affect listed species … or, if the action is likely to adversely affect listed species, a biological opinion evaluating those effects and determining whether the action is likely to jeopardize the continued existence of the listed species …”
Plaintiffs allege that oceanic whitetip shark was listed as an endangered species in 2018 “largely due to excessive pressure from direct and unintentional catch in fisheries.” Plaintiffs further allege that Defendant NMFS “continues to authorize multiple fisheries that catch and kill oceanic whitetip sharks, including the Hawai’i deep-set longline fishery and American Samoa longline fishery,” both of which “primarily target tuna and swordfish, but also catch large numbers of oceanic whitetip sharks as bycatch.” According to Plaintiffs, NMFS, which has subdivisions that act as both the “action agency” that “authorizes and manages” the two fisheries, and the “consulting agency,” has failed to engage in the required consultation and has not provided any assurance it will do so “…in any time frame. In the meantime, the agency continues to allow unauthorized, unlimited take of oceanic whitetip sharks in the Hawai’i deep-set and American Samoa longline fisheries.”
Plaintiffs allege two causes of action: Violation of ESA “Duties to Complete Consultation and Ensure Against Jeopardy” and Violation of the ESA and the Administrative Procedures Act (APA) “Duties to Complete Consultation.” In the first cause of action, Plaintiffs allege that the NMFS’s authorization of the two fisheries requires the ESA “consultation” that has not yet occurred. The second cause of action references the APA’s general requirement that federal agencies must “conclude a matter … within a reasonable time,” which the NMFS has allegedly violated by its “multiple-year delay.”
Plaintiffs seek declaratory relief: a declaration that the NMFS’s continued authorization of the fisheries operations “absent completed [ESA required] consultations regarding the oceanic whitetip shark” violates the ESA and related regulations; and a declaration that the NMFS has violated the APA through delay. Plaintiffs also request the court to order a completion of the consultation process and award attorney fees.
Plaintiffs are represented by attorneys from Earthjustice.
