Environmental Groups Sue Government For Failing To Designate A Critical Habitat

On Tuesday the Natural Resources Defense Council, Inc. (NRDC), and Healthy Gulf sued several government administrators and agencies, including Chris Oliver, in his official capacity as Assistant Administrator for Fisheries, National Marine Fisheries Service and National Marine Fisheries Service (NMFS) in the District of Columbia District Court for failing to “designate critical habitat for the Gulf of Mexico whale within one year of the date of publication of its listing decision.”  The designation of critical habitat within one year after listing a decision is required by the Endangered Species Act (ESA).

The plaintiffs brought this suit after filing previous actions against the same defendants with the goal of putting the Gulf of Mexico whale, a subspecies of Bryde’s whale, on the endangered species list.  The complaint states that by “government estimates only 33 individual whales remain in the wild,” which makes this one of the most endangered whales on the planet.  Recent sightings have occurred near the area of De Soto Canyon in the northeastern Gulf. 

Starting in 2014, NRDC filed an ESA petition with NMFS in order to have the Gulf of Mexico whale listed as endangered.  NRDC sued back in 2016 due to the NMFS failure to produce a 12-month finding within one year of its receipt of NRDC’s petition.

It was not until five years later on April 15, 2019, that the NMFS published a final rule listing the Gulf of Mexico whale as endangered.  NMFS specifically stated: “the species was endangered ‘due to its small population size and restricted range, and the threats of energy exploration, development and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, and anthropogenic noise.’”  The plaintiffs brought this suit because the NMFS has failed to meet a mandatory deadline as required under the ESA.  Specifically, the ESA—16 U.S.C. § 1533(a)(3)(A)(i), (b)(6)(C)—states NMFS “shall designate critical habitat for an endangered species concurrently with its determination to list the species.”  The deadline may be extended by one year in certain circumstances, and only one extension is allowed.  However, no extension has been allowed in the year that has since passed.

The plaintiffs asserted that the delayed protection and designation of critical habitat for these whales harms the species and lowers its odds of survival.  Claims for relief were asserted under the ESA and the Administrative Procedure Act (APA).  As previously stated, the plaintiffs asserted that the defendants were required to designate critical habitat for the Gulf of Mexico whale within, at the latest, one year after releasing the final listing decision.  Since the defendants have not done so, they have allegedly violated sections 16 U.S.C. §§ 1533, 1540(g)(1)(C) of the ESA, and the APA, 5 U.S.C. § 706(1).

The plaintiffs are seeking the court to recognize the defendants’ failure to act, and order for the defendants to prepare and publish a final regulation designating the whale’s critical habitat.  Additionally, the plaintiffs request attorney fees for this action. 

The plaintiffs are both represented by the Natural Resources Defense Council.