On May 19, 2005, a group of environmental organizations (appellants in this case) submitted a petition for emergency rulemaking to NMFS, which requested immediate regulations to require all ships entering and leaving all major East Coast ports to travel at speeds of 12 knots or less within 25 nautical miles of port entrances during expected right whale high-use periods. NMFS denied that request. At around the same, the appellants were also challenging the Coast Guard regarding its duties under the ESA.The appellants pointed out that the Coast Guard has the authority to control vessel movement and the obligation to take into account “environmental factors” when so doing. They argued that the agency was violating the ESA by establishing and maintaining shipping lanes, without appropriate safeguards, in areas inhabited by the whales. On November 9, 2005, appellants filed an action in federal district court against NMFS and the Coast Guard. The district court granted appellees’ cross-motion for summary judgment and denied that of appellants. The appellants appealed. The appellate Court dealt with two questions: - The court found that no abnormal circumstances were present and that NMFS was well aware of its mandate to protect right whales. The court further determined that there was no legal justification for disturbing the agency’s decision to focus its resources on promulgation of the final, comprehensive rule. - The appellate court determined that the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes under federal law. Therefore, nothing controverted the finding that Congress intended the Coast Guard to have the authority to promulgate traffic separation schemes and to be held accountable for its decisions per the ESA and APA. The appellate court also found the appellants’ evidence of final agency action to be convincing. The Court held that Coast Guard's tasks require a significant amount of discretion, making them agency action subject to review under the APA.
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532 F.3d 913
The appellate court affirmed the district court’s denial of the challenge to NMFS’s denial of the emergency rulemaking petition. The appellate court reversed the district court’s grant of summary judgment to appellees on the Coast Guard issue. The case was remanded to the district court for further proceedings.
Court cases cited
Geller v. FCC, 610 F.2d 973 (D.C. Cir. 1979)
Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1 (D.C. Cir. 1987)
Florida Audubon Society v. Bentsen, 94 F. 3d 658 (D.C. Cir. 1996)
City of Waukesha v. EPA, 320 F. 3d 228, 235 (D.C. Cir. 2003)
Endangered Species Act, 16 U.S.C. § 1531 et seq.
Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.
Ports and Waterways Safety Act, 33 U.S.C. § 1221 et seq.
Administrative Procedure Act, 5 U.S.C. § 500 et seq.
Coast Guard and Maritime Transportation Act, 14 U.S.C. § 57 et seq.
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