# Strahan v. Linnon

> District Court, D. Massachusetts · May 20, 1997 · 967 F. Supp. 581

URL: https://www.frixlaw.com/law-library/cases/1467513

## Case

- **Full name:** Richard Max STRAHAN, Plaintiff, v. Rear Admiral John L. LINNON, Commander First District, United States Coast Guard; Admiral Robert E. Kramek, Commandant, United States Coast Guard; Michael Kantor, Secretary, United States Department of Commerce; D. James Baker, Administrator, National Oceanic and Atmospheric Administration; And Roland Schmitten, Assistant Administrator, National Marine Fisheries Service, Defendants
- **Court:** District Court, D. Massachusetts
- **Decided:** May 20, 1997
- **Citations:** 967 F. Supp. 581; 1997 U.S. Dist. LEXIS 8547; 1997 WL 324067
- **Precedential status:** Published
- **Opinion:** Opinion by Woodlock
- **Judges:** Woodlock
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1467513

## How later opinions describe it (automated extraction)

- finding Section 7(a)(1) argument unpersuasive because plaintiff "has not demonstrated . . . specific measures that are necessary to prevent the loss of any endangered species" in addition to those adopted by the agency
- finding no “excusable neglect” where movants failed to show “why they did not request . . . an extension” prior to applicable deadline
- holding 60-day notice inapplicable and declining to follow Lone Rock Timber Co. because the pleadings provided defendants with fair notice of plaintiffs challenge
- holding that the ESA “places no time constraints on the development of recovery plans”
- holding Coast Guard vessel operations required preparation of an Environmental Assessment under NEPA

## Opinion text

MEMORANDUM AND ORDERS
WOODLOCK, District Judge.
The Amended Complaint in this action contains headings for twenty-three counts variously alleging that the defendants, the United States Coast Guard and the Secretary of Commerce, have violated several federal statutes, including the Endangered Species Act, the National Environmental Policy Act, the Marine Mammal Protection Act, and the Ad
*588
ministrative Procedure Act.
1
Broadly stated, the plaintiff asserts that the defendants have addressed inadequately the impact of Coast Guard activities on various endangered marine mammals, especially the Northern Right whale. Plaintiff contends that such compliance with law as the defendants have manifested is the result only of specific mandate from this Court and that further decrees are required to secure full compliance.
The defendants now move for summary judgment on all counts arguing that they have complied with the mandates of the several statutes. The plaintiff has filed a cross motion for partial summary judgment contending the defendants’ purported compliance has been inadequate and that, accordingly, the actions — and inaction — of defendants still present a threat to the endangered marine mammals.
I will grant full summary judgment to the defendants.
I. Background
In June, 1994, plaintiff Max Strahan filed the original complaint in this action
pro se
against defendants Rear Admiral John L. Linnon and Admiral Robert E. Kramek of the United States Coast Guard. The original complaint alleged violations of four federal statutes: the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), the Marine Mammal Protection Act (“MMPA”), and the Whaling Convention Act.
2
Strahan moved for a preliminary injunction and the defendants moved for summary judgment.
By a Memorandum and Order issued on May 2, 1995
3
,
Strahan v. Linnon,
967 F.Supp. 609 (D.Mass.1995), I granted summary judgment for the defendants on several of the counts in the complaint. Due to the “defendants’ dilatoriness and neglect in initiating mandated procedures,” however, I declined to grant summary judgment to the defendants on the counts regarding ESA consultation, conservation and permitting; MMPA permitting; and NEPA environmental assessment preparation. Memorandum and Order, at 2. I also granted, in part, Strahan’s motion for a preliminary injunction, “to the extent of directing that the Coast Guard initiate and expeditiously fulfill the procedural requirements of the ESA, MMPA, and NEPA.”
Infra
at 610.
Following that order, the Coast Guard on August 1, 1995, submitted a “Final [ESA] Biological Assessment for the U.S. Atlantic Coast” (“BA”) to the National Marine Fisheries Service (NMFS) to aid consultation over its operations. Dft’s Memo, at 7. Then, on September 15, 1995, NMFS issued its 1995 Biological Opinion (“BO”) on U.S. Coast Guard Vessel and Aircraft Activities along the Atlantic Coast. In that Biological Opinion, NMFS concluded that long-term continuation of Coast Guard activities was not likely to jeopardize any listed species.
See
1995 BO, at 39. (FEIS Vol. I, App. C.) The 1995 Biological Opinion also stated, however, that consultation must be reinitiated if an endangered whale was struck or injured by a Coast Guard vessel.
Id.
at 40. On September 22, 1995, the Coast Guard published an Environmental Assessment of Potential Impacts of U.S. Coast Guard Activities Along the U.S. Atlantic Coast (“EA”) and a proposed Finding of No Significant Impact (“FONSI”).
4
(Id.,
App. D.) During September and October of 1995, the Coast Guard received comments on its Environmental Assessment, many of which urged the Coast Guard to reconsider its FONSI determination and issue an Envi
*589
ronmental Impact Statement (“EIS”).
See
FEIS, at 2-2.
On October 9, 1995, the Coast Guard Cutter
Reliance
struck a Humpback whale.
Id.
Additionally, an increased number of Right whale mortalities was observed during the 1995-1996 Northern Right whale calving season.
Id.
Because of these developments, the Coast Guard reinitiated consultations with NMFS on February 22, 1996.
Id.
Then, on July 22,1996, NMFS issued a second Biological Opinion on the reinitiated consultation.
See
FEIS, Vol. I, Exh. F. “Based primarily on the new information which indicated that the right whale population might be experiencing a decline, the 1996 Biological Opinion found that the Coast Guard activities were likely to jeopardize the continued existence of northern right whales.”
Id.
at 24. Because of its “jeopardy” finding, NMFS proposed a Reasonable and Prudent Alternative (“RPA”) which it found was likely to avoid jeopardy to the species.
Id.
at 26-29.
During the same time period, the Coast Guard determined that it could not reach a FONSI and that an additional environmental analysis was necessary.
See
FEIS, at 1-3. On April 2, 1996, therefore, the Coast Guard published a Notice of Intent to prepare a Draft Environmental Impact Statement (“DEIS”) and a Scoping Notice in the Federal Register.
Id.
at 2-2. The DEIS was published for public review and comment on July 31, 1996.
Id.
at 1-3, App. Q. The DEIS promoted the Atlantic Protected Living Marine Resources (“APLMR”) Initiative as the preferred alternative. After receiving and analyzing public comments, the Coast Guard published the FEIS on October 31, 1996. After a mandatory period of public review, on December 9,1996, the Coast Guard issued its Record of Decision (“ROD”) which adopted the APLMR Initiative. (Administrative Record, Vol. IV, Doc. 656.)
Meanwhile, NMFS was also engaged in other activities in order to lessen the diminishment of the Right whale population. For example, in or about August, 1996, NMFS established a Large Whale Take Reduction Team (“TRT”) under the MMPA.
See
61 Fed.Reg. 40819 (August 6, 1996). On January 2, 1997, NMFS issued a final rule classifying inshore and offshore lobster fisheries as Category I fisheries under the MMPA.
See
62 Fed.Reg. 33. Despite the fact that the TRT did not reach consensus, it submitted a draft Take Reduction Plan (“TRP”) to NMFS on February 1, 1997. On April 1, 1997, NMFS filed its proposed final TRP in the Federal Register.
See
Dft’s Reply, Exh. C. Last, on February 13, 1997, NMFS issued an interim final rule restricting approaches within 500 yards of Right whales, whether by vessel, aircraft or other means. 62 Fed.Reg. 6729 (Feb. 13,1997).
Unsatisfied by the defendants’ consultation and conservation efforts and now represented by counsel and joined by a new co-plaintiff, Strahan moved to file an amended complaint on May 21,1996,
5
which I allowed after oral argument on June 19,1996. A discovery and briefing schedule was established. On March 7, 1997, the defendants filed a motion for summary judgment on all counts, arguing,
inter alia,
that they had completed the consultation process and that their various conservation plans and environmental assessments were in place, satisfactory and would adequately protect endangered species. The plaintiff moved for partial summary judgment the same day. The plaintiff generally attacks the results of the consultation process and argues that the defendants have not adequately insured that the Northern Right whale will not continue to be jeopardized by Coast Guard and NMFS actions and inaction.
II. Procedural Arguments
Before addressing the substantive issues in this case, I must consider several procedural arguments advanced by the defendants to deflect certain of the plaintiff’s
*590
claims. First, the defendants assert that Count XII of the Amended Complaint, which alleges that NMFS violated Section 7 of the ESA because the 1995 Biological Opinion (“BO”) “fails to meet the requirements of the ESA,” is moot because the 1995 Biological Opinion has been superseded by the 1996 Biological Opinion. I agree with the defendants that the claim against the 1995 Biological Opinion is now moot because the 1995 Biological Opinion is no longer in effect and “the challenged actions are now water over the spillway, as it were.”
Idaho Dep’t of Fish & Game v. NMFS,
56 F.3d 1071 , 1074 (9th Cir.1995).
6
The plaintiff has had ample time to move to amend his complaint and has failed to do so in accordance with Fed. R.Civ.P. 15 in order to restate his claims formally as to the 1996 Biological Opinion. Nevertheless, despite the lack of formal amendments or supplementation, the parties have understood the 1996 Biological Opinion is in dispute. The defendants have addressed the adequacy of the 1996 Biological Opinion in their supporting memoranda and they “will suffer no apparent prejudice as a result of supplementation.”
Structural Systems, Inc. v. Sulfaro,
692 F.Supp. 34, 35-36 (D.Mass.1988). Accordingly, I will treat the pleadings as supplemented
7
with respect to Count XII.
8
The defendants also assert that Counts XV and XVI of the Amended Complaint, alleging that the defendants have violated sections 117 and 118 of the Marine Mammal Protection Act (“MMPA”) because they have not created a Take Reduction Team (“TRT”)or issued a Take Reduction Plan (“TRP”), are moot because a TRT has been formed and, they argue, that NMFS will issue a final TRP by July 15, 1997. To the contrary, the plaintiff argues that the TRP alluded to by the defendants does not satisfy the MMPA’s requirements because the TRT could not reach a consensus on the plan. The statute requires that if a TRP is not reached by consensus “the Secretary shall take the draft take reduction plan into consideration and ... shall publish in the Federal Register the plan proposed by the team....” 16 U.S.C. § 1387 (f)(7)(B)(i). I find that the defendants have complied with the statute in so far as the Secretary filed its proposed TRP in the Federal Register on April 1, 1997.
See
Dft’s Reply, Exh. C. The plaintiff still contends, nevertheless, that his claims are not moot because of the further allegation that the defendants did not adhere to the time limits mandated in the MMPA. Even if I found that the defendants did not previously comply with the statute’s time restrictions,
9
however, plaintiffs claim would still be moot because there would be no
*591
available relief. Accordingly, I find that Counts XV and XVI are moot. I similarly find that Count XVII, alleging NMFS has not classified the lobster fishery in Category I, is moot because NMFS issued a final rule on fishery classifications which included classification of inshore and offshore lobster fisheries as Category I fisheries on January 2, 1997.
See
62 Fed.Reg. 33.
III. ESA
The plaintiff asserts various claims that the defendants have violated the ESA. These claims allege that the Coast Guard violated § 7 because its Biological Assessment did not meet the requirements of the ESA (Count I); that the Coast Guard violated § 7(a)(2) by failing to consult with NMFS before issuing permits for certain vessels (Count II); that the Coast Guard violated § 7(a)(1) by failing to implement a conservation plan (Count III); that the Coast Guard violated § 7(a)(2) by issuing Certificates of Inspection to vessels of commercial whale-watching companies “that intentionally pursue and commercially exploit listed endangered species.” (Count V); that the Coast Guard has violated “the legal duties imposed on it by 16 U.S.C. § 1540 (e)(1) to conserve and protect the Northern Right whale” by failing to enforce the prohibitions of the ESA (Count VI); that the Coast Guard has taken Northern Right whales in violation of Section 9 of the ESA, 16 U.S.C. § 1538 (Count IX); that NMFS violated section 7 of the ESA by failing to issue an adequate Biological Opinion (Count XII); that NMFS violated section 4 of the ESA by failing to adopt and implement an adequate recovery plan and conservation program (Count XIII); that NMFS violated section 11 of the ESA by adopting a policy of non-enforcement (Count XXII); and that NMFS violated section 6 of the ESA by improperly entering into a Cooperative Agreement with the Commonwealth of Massachusetts (Count XXIII). I will address each of these Counts individually.
10
1. The Biological Assessment and Opinions
In Counts I and XII, the plaintiff challenges, respectively, the adequacy of the Coast Guard’s Biological Assessment (“BA”) and NMFS’s Biological Opinions (“BO”).
11
Both the plaintiff and the defendants move for summary judgment on these counts. Although I address the adequacy of the Biological Assessment and the Biological Opinions separately, I find that the analyses are largely similar. I begin with a detailed discussion of the Biological Opinions followed by a briefer analysis of the Biological Assessment.
A. The Biological Opinions
1. Procedural Defenses
The defendants attempt initially to dispose of Count XII on various procedural grounds. I do not find these arguments persuasive.
First, the defendants assert that the Biological Opinions are not final agency action and, accordingly, that they may not be reviewed by this Court under the Administrative Procedure Act (“APA”). This argument was rejected recently by the Supreme Court in
Bennett v. Spear,
— U.S. -, 117
*592
S.Ct. 1154, 137 L.Ed.2d 281 (1997). Addressing this precise issue, that Court stated:
As a general matter, two considerations must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s decision-making process,
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103, 113 , 68 S.Ct. 431, 437 , 92 L.Ed. 568 (1948)—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,”
Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic,
400 U.S. 62, 71 , 91 S.Ct. 203, 209 , 27 L.Ed.2d 203 (1970).
Id.
at -, 117 S.Ct. at 1168 . Based on this analysis, the Court then held that a Biological Opinion satisfied the requirements and constituted final agency action.
Id.
at-- -, 117 S.Ct. at 1168-69 .
The defendants argue another point addressed adversely to them by the Supreme Court in
Bennett.
They assert that the citizen-suit provision in the ESA, 16 U.S.C. § 1540 (g)(1)(A), provides no basis for the plaintiffs challenge to the Biological Opinions. In
Bennett,
the Supreme Court found this argument persuasive on the facts there presented and concluded that the plaintiffs could not challenge the adequacy of a Biological Opinion
under the ESA.
Explaining its reasoning, the Court stated:
[Section] 1540(g)(1)(C) expressly authorizes suit against the Secretary but only to compel him to perform a nondiscretionary duty under § 1533. That provision would be superfluous—and, worse still, its careful limitation to § 1533 would be nullified—if § 1540(g)(1)(A) permitted suit against the Secretary for any “violation” of the ESA.
Id.
at-, 117 S.Ct. at 1166 . This finding as to the ESA, however, does not preclude judicial review of the Biological Opinions on another basis. In fact, after rejecting the plaintiffs’ challenge to the biological opinions under the ESA, the Supreme Court in
Bennett
found:
No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ESA’s citizen-suit provision are exclusive, supplanting those provided by the APA. The APA, by its terms, provides a right to judicial review of all “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704 .
Id.
at-, 117 S.Ct. at 1167 . Thus, I find that the plaintiffs § 1536 claims are renewable under the APA.
The last procedural argument advanced by the defendants is that the plaintiff has failed to comply with the 60-day notice requirement contained in ESA § 11(g)(2)(A). I am not persuaded by this argument. First, at an earlier hearing in this case, held on June 19, 1996, I determined, and the parties agreed, that the notice provided was sufficient as to the claims of the Amended Complaint.
See
Supp. Aff. of Jonathan M. Ettinger, Exh. D, at 33. Given the history of this litigation, coupled with plaintiff Strahan’s “zealous advocacy,” (of which the defendants are well aware) the pleadings provided defendants fair notice that the plaintiff would challenge the substance of the related Biological Opinions.
12
Last, because I have determined that the plaintiffs § 1536 claims regarding the sufficiency of the Biological Opinions lies under the APA, rather than the ESA, it does not appear that the 60-day notice requirement even applies in the present action.
2. Substantive Challenges
The Amended Complaint alleges that the 1995 and 1996 Biological Opinions are plagued by various substantive inadequacies.
a.
“cumulative effects” .
The plaintiffs assertion that the Biological Opinions failed “to adequately evaluate the cumulative impacts of all marine events, including Coast Guard and non-Coast Guard vessels,” (Am. Complaint ¶¶ 54b(l), 105(a)), is not borne out by the record. “Cumulative effects” are de
*593
fined in 50 C.F.R. § 402.02 as “those effects of future state or private activities ... that are reasonably certain to occur within the action area of the federal action subject to consultation.” I find that the 1995 and 1996 Biological Opinions satisfy this standard. In particular, both Biological Opinions contain thorough discussions of the impact of non-Coast Guard vessels on the Northern Right whale.
See
1995 BO at 36-38, FEIS Vol. I, App. C., 1996 BO at 23-24, FEIS Vol. I, App. F.
b.
“best scientific and commercial data”.
The plaintiffs contention that the Biological Opinions are deficient because they failed to “use the best scientific and commercial data available,” 50 C.F.R. § 402.14 (g)(8), is also unsupported by the record. The plaintiff specifically alleges that NMFS used stale data from 1992, that NMFS did not attempt to obtain current population data that was available at the time the Biological Opinions were prepared, and that NMFS “did not perform any population viability analysis or model the effects of ship-whale interactions or perform a risk assessment to determine density and likelihood of conflicts between usage by vessels and whales in areas used by both.” Pi’s Memo, at 11. If true, plaintiffs contentions would render the Biological Opinions insufficient under the ESA.
See Roosevelt Campobello Int’l Park Comm’n v. U.S. E.P.A.,
684 F.2d 1041 , 1049 (1st Cir.1982);
Resources Limited, Inc. v. Robertson,
35 F.3d 1300, 1304 (9th Cir.1994);
Conner v. Burford,
848 F.2d 1441, 1453-54 (9th Cir.1988),
cert. denied sub. nom., Sun Exploration and Production v. Lujan,
489 U.S. 1012 , 109 S.Ct. 1121 , 103 L.Ed.2d 184 (1989). I find, however, that NMFS used the best scientific and commercial data available to it in formulating the Biological Opinions.
The plaintiffs allegation that the Biological Opinions rely on stale data from 1992 is inaccurate. Indeed, the 1996 Biological Opinion specifically refers to the new data it relies on, stating:
The new information is the number of mortalities documented in the past 12 months and information from the right whale identification catalogue which compares current and past mortalities to known births to give a perspective on the population trend since 1980. Also, locations of carcasses of some of the 196 mortalities, as well as preliminary offshore aerial survey data (GADNER, unpublished data) and sightings____
1996 BO at 12. In the next several pages of the Biological Opinion, these developments are discussed individually in greater detail.
See id.
at 12-18. Moreover, the 1996 Biological Opinion also reports about information it received from the New England Aquarium in the several months before the Biological Opinion was published.
See id.
at 15-16. Accordingly, I find the plaintiffs allegation that the defendants “did not even attempt to obtain” current information to be plainly false. In fact, rather than “ignore available biological data,”
Conner,
848 F.2d at 1454 , NMFS expressly incorporated such information into its 1996 Biological Opinions.
See, e.g.,
1996 BO, at 19 (assessing change in environmental baseline due to “recent documented mortalities”) .
13
With respect to the plaintiffs assertions that NMFS did not perform population viability analyses or model the effects of whale-ship interactions, I do not find that these “deficiencies” constitute a failure to use the best scientific and commercial data available.
Roosevelt Campobello,
a case the plaintiff cites for support, is readily distinguishable. In
Roosevelt Campobello,
the First Circuit determined that the Coast Guard did not use
*594
the best scientific data because it did not perform a “real time simulation.”
Roosevelt Campobello,
684 F.2d at 1052-55. In that case, however, “[a]ll the witnesses [in the administrative hearing] have agreed that real time simulation studies would contribute a more precise appreciation of risks of collision and grounding. We think the same could be said of a hydrographic survey of the depth of the channel, and perhaps of trial runs by VLCCs in ballast.”
Id.
at 1055. In this case, by contrast, there is no evidence indicating that modeling and population viability analyses would “contribute a more precise appreciation of risks.” While the plaintiff insists that “[a]n analysis of the distribution of whales and ships would enable NMFS and the Coast Guard to better determine the risks of ships striking whales,” Pi’s Reply, at 7, this conclusory assertion does not constitute adequate evidence. As in
Bays’ Legal Fund v. Broumer,
828 F.Supp. 102 (D.Mass. 1993), where the court dismissed the plaintiffs’ claims that the EPA did not use the best scientific data available, I find that “the plaintiffs never produce any evidence that the data on which the EPA relied ... was inferior in any way. They only make the conclusory allegation that [the study] ... could have [been] performed ... with greater expertise.”
Id.
at 106 n. 7. Accordingly, I find that NMFS has satisfied its duty to use the best scientific and commercial data available, as required by § 7(a)(2) of the ESA, 16 U.S.C. § 1536 (a)(2).
Because I find that the Biological Opinions adequately analyze the cumulative impact of the proposed action and that they employ the best scientific and commercial data, I find that they withstand scrutiny under the arbitrary and capricious standard of the APA.
See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy,
898 F.2d 1410, 1414 (9th Cir.1990)(“Judieial review of administrative decisions involving the ESA is governed by section 706 of the Administrative Procedure Act.”);
Bays’ Legal Fund,
828 F.Supp. at 107 (“Therefore, to succeed, the plaintiffs must establish that ... the scientific determinations ... were arbitrary and capricious.”). I will grant summary judgment for the defendants on Count XII.
B. The Biological Assessment
The plaintiff attacks the Biological Assessment (“BA”) on largely the same grounds that he faults the Biological Opinions. Therefore, the analysis of the plaintiffs claims with respect to the Biological Assessment will echo the discussion of the Biological Opinions. There is one difference worth noting, however, because it informs the entire analysis. Unlike the Biological Opinion, the contents of the Biological Assessment are discretionary. The applicable regulations state that “[t]he contents of a biological assessment are at the discretion of the [action] agency and will depend on the nature of the Federal action.” 50 C.F.R. § 402.12 .
See also Bays’ Legal Fund,
828 F.Supp. at 110 n. 19 (“there are no strict requirements for what the biological assessment should include; its contents are discretionary with the agency preparing it.”).
14
Accordingly, the Court’s review of the Biological Assessment will be less searching than its consideration of the Biological Opinions.
First, the plaintiff asserts that the Biological Assessment did not discuss adequately the cumulative impacts of “all marine events.” Am. Complaint § 54b(l). Although it contains a briefer discussion of the cumulative impacts of Coast Guard and non-Coast Guard activities than the Biological Opinions, I find that the Biological Assessment does discuss the cumulative impacts such as “pollution, oil and gas exploration, sea-bed mining, and a general increase in coastal activities due to an increase in human population along the east coast.” BA at 3-7-3-10 (AR Vol. III). The plaintiff next contends that the Coast
*595
Guard did not “use sufficiently qualified personnel and the best scientific data available” in the Biological Assessment. (Am. Complaint ¶ 54b(2) .) In the first instance, I do not find any support in the ESA or in the cases cited by the plaintiffs, for the assertion that Biological Assessments must employ personnel or scientific data of a particular quality. In fact, each case cited by the plaintiffs in this section discusses the statutory requirements for either Biological Opinions or Environmental Impact Statements.
See Carmel-by-the-Sea v. U.S. Dep’t of Trans.,
95 F.3d 892 , 900 (9th Cir.1996) (EIS);
Resources Limited, Inc. v. Robertson,
35 F.3d 1300, 1305 (9th Cir.1993) (BO);
Roosevelt Campobello,
684 F.2d at 1052 n. 9 (EIS). In any event, the plaintiff does not produce any evidence that the data used by the Coast Guard was outdated or incorrect
15
or that the personnel involved were inadequate to the task.
Last, the plaintiff asserts that the Biological Assessment did not consider adequately “meaningful alternatives to the proposed action.” Am. Complaint ¶ 54b(3). Again, I find this assertion to be contrary to the evidence in the Biological Assessment itself. Indeed, the Biological Assessment devotes an entire chapter to “Proposed Action and Alternatives to Proposed Action.”
See
BA, Chapter 5. Briefly, the alternatives discussed include (1) the preferred alternative, (2) the reduction of vessel speed and the increase of aircraft altitude when endangered species are expected to be in the area, (3) reduction of vessel speed and increase in aircraft altitude at all times, (4) avoidance of all high use areas, and (5) cessation of USCG patrolling of the Atlantic Coast.
See id.
at 5-4-5-5. I find that this discussion is sufficient. Accordingly, I find that the Coast Guard’s Biological Assessment is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2)(A). I will grant summary judgment to the defendants on Count I.
2. The Conservation Program and Recovery Plan
In Count III of the Amended Complaint the plaintiff alleges that the Coast Guard’s conservation program is “substantially deficient” and therefore violative of § 7(a)(1) of the ESA. Similarly, Count XIII alleges that NMFS has not adopted recovery plans for federally protected whales other than the Right and Humpback whales. Therefore, the plaintiff contends that NMFS has violated 16 U.S.C. § 1533 (f) which requires NMFS to “develop and implement” such plans. Both the plaintiff and the defendants move for summary judgment on these counts.
A. The Conservation Program
Section 7(a)(1) states that federal agencies “shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species____” 16 U.S.C. § 1536 (a)(1). The plaintiff asserts that the Coast Guard has violated § 7(a)(1) because the APLMR Initiative, adopted as the preferred alternative in the FEIS and then in the ROD, “cannot be considered an adequate conservation program as required by the ESA” Pi’s Memo, at 24. Specifically, the plaintiff argues that the APLMR “does not contain specific measures ‘necessary ... to prevent the loss of any endangered [whales].’ ” Pl’s Memo, at 24 (citing
Roosevelt Campobello,
684 F.2d at 1049 )(citing
TVA v. Hill,
437 U.S. 153, 185 , 188 n. 34, 98 S.Ct. 2279, 2297 , 2299 n. 34, 57 L.Ed.2d 117 (1978)). I do not find this argument persuasive because the plaintiff has not demonstrated, in any meaningful sense, specific
*596
measures that are necessary to prevent the loss of any endangered species that are missing from the APLMR. The only problem the plaintiff identifies is that the plan “establishes neither speed limits nor distance rules for non-Coast Guard vessels.”
Id.
at 25. I do not find this a fatal flaw. In fact, the APLMR addresses, directly, the issue of controlling non-Coast Guard vessels, stating that “[t]he NMFS, which has the biologists and the resources needed to consider and develop [approach and distance rules for non-Coast Guard vessels], has already undertaken this proposal and the USCG will continue to support [its] efforts.... ” BO, at 3-14.
16
In any event, conservation plans, under § 7(a)(1) are “voluntary measures that the federal agency has the discretion to undertake” and “the Act does not mandate particular actions be taken by Federal agencies to implement § 7(a)(1).” 51 Fed.Reg. 19926, 19931,19934. If the Coast Guard was forced to impose distance and speed restrictions, or other specific measures in order to fulfill its duty to conserve under § 7(a)(1), the Coast Guard “would [be] divest[ed] ... of virtually all discretion on deciding how to fulfill its duty to conserve. We have recognized that the Secretary is to be afforded some discretion in ascertaining how best to fulfill the mandate to conserve under section 7(a)(1).”
Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of the Navy,
898 F.2d 1410, 1418 (9th Cir.1990).
TVA v. Hill,
437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978) does not compel a finding that the Coast Guard must adopt specific measures in order to comply with § 7(a)(1). In
TVA ,
it was undisputed that the proposed agency action would “either eradicate the known population of snail darters or destroy their critical habitat.”
Id.
at 172 , 98 S.Ct. at 2291 . The situation here is entirely distinguishable because the effects of Coast Guard activity, themselves, are not the center of plaintiffs § 7(a)(1) claim. Rather, the dispute is about the necessity of adopting specific protective measures in the conservation program. It is not suggested by the plaintiff that without the speed and distance rules, Northern Right whales face such imminent eradication. Moreover, the holding in
TVA
was premised on § 7(a)(2), while § 7(a)(1) is at issue here.
17
Because “[a]n agency’s duty to consult ... does not divest it of discretion to make a final decision that ‘it has taken all necessary action to insure that its actions will not jeopardize the continued existence of an endangered species,’ ”
Roosevelt Campobello,
684 F.2d at 1049 (quoting
National Wildlife Fed’n v. Coleman,
529 F.2d 359, 371 (5th Cir.),
cert. denied,
429 U.S. 979 , 97 S.Ct. 489 , 50 L.Ed.2d 587 (1976)), I find that the APLMR adopted by the Coast Guard fulfills the requirements of § 7(a)(1). I will grant summary judgment for the defendants on Count III.
B. The Recovery Plan
The plaintiff, in Count XIII, alleges that NMFS has violated § 4(f) of the ESA, 16 U.S.C. § 1533 (f) because it has not “developed] and implemented] plans for the conservation and survival of endangered species and threatened species ____” 16 U.S.C. § 1533 (f). Plaintiff makes two separate arguments with respect to NMFS’s recovery plans. First, he contends that NMFS has violated the ESA because it has not developed any recovery plans for the Blue, Sei, Fin, or Minke whales, but only the Right and Humpback whales. The plaintiff then alleges that the existing Right whale recovery plan
*597
is insufficient because it does not “incorporate implementable site-specific management actions necessary to achieve the plan’s goal ...” and because it does not “establish a realistic recovery goal.” Am. Complaint ¶ 108. The Amended Complaint further alleges that the existing plan has not been revised.
With respect to the claim that NMFS has violated § 4(f) because it has not developed recovery plans for federally protected whales other than Right and Humpback whales, the defendants respond that the there are no time limits in § 4(f) within which the Secretary must develop, implement, or revise a recovery plan. I am persuaded by the defendants’ argument.
See Oregon Natural Resource Council v. Turner,
863 F.Supp. 1277, 1282-83 (D.Or.1994). The court observed:
Congress recognized that the development of recovery plans for listed species would take significant time and resources. It therefore provided in the ESA that the Secretary could establish a priority system for developing and implementing such plans. This priority system allows the Secretary broad discretion to allocate scarce resources to those species that he or she determines would most likely benefit from development of a recovery plan. Unlike other requirements under the ESA, such as the designation of critical habitat, the statute places no time constraints on the development of recovery plans. See 16 U.S.C. § 1533 (f).
Id.
at 1283.
18
Accordingly, the Secretary has developed a priority system for developing such recovery plans.
See
55 Fed. Reg. 24296 . I find, therefore, that the fact that NMFS has not issued recovery plans for Sei, Blue, and Fin whales
19
does not constitute a violation of § 4(f).
The plaintiff also asserts that the recovery plans that do exist, are deficient and thus violative of the statute. He claims that “as a general matter, [the recovery plan] does not contain objective, scientific, measurable criteria.” Pi’s Opp., at 13. More specifically, the plaintiff contends that the plan “fails to include ... an annual census, a population viability analysis, modeling of ship-whale interactions, risk analysis, and interim numerical goals.”
Id.
at 14 (citing Affidavit of Robert D. Stevenson, Pi’s Exh. H, at 3-6). The defendants assert that the discretionary nature of a recovery plan also applies to the plan’s content and that “it is not necessary for a recovery plan to be an exhaustively detailed document.” Dft’s Memo, at 25 (quoting
Fund for Animals v. Babbitt,
903 F.Supp. 96, 107 (D.D.C.1995)).
Case law instructs that the defendants are correct in their assertion that the content of recovery plans is discretionary. For example, in
Fund for Animals, Inc. v. Rice,
85 F.3d 535 (11th Cir.1996), the plaintiffs’ argument relied on the assumption that “Recovery Plan[s][are] document[s] with the force of law.”
Id.
at 547 . The court rejected that characterization stating that “[s]ection 4(f) makes it plain that recovery plans are for guidance purposes only.”
Id.
Similarly, the court in
Morrill v. Lujan,
802 F.Supp. 424, 433 (S.D.Ala.1992), found that “the contents of [recovery] plans are discretionary.” While it is true that § 4(f) “does not permit an agency unbridled discretion,” and “imposes a clear duty on the agency to fulfill the statutory command to the extent that it is feasible or possible,”
Fund for Animals v. Babbitt,
*598
903 F.Supp. 96, 107 (D.D.C.1995), the requirement does not mean that the agency can be forced to include specific measures in its recovery plan. In fact, all that is required in a recovery plan is “the identification of management actions necessary to achieve the Plan’s goals for the conservation and survival of the species.”
Id.
at 108 .
In any event, the evidence does not support that the measures suggested by the plaintiff are “necessary to achieve the plan’s goal for the conservation and survival of the species.” 16 U.S.C. § 1533 (f)(1)(B)©. And in fact, some of the measures advocated by the plaintiff are currently being implemented by NMFS. For example, the plaintiffs expert, Robert D. Stevenson, Ph.D., states that NMFS should conduct a population viability analysis (“PVA”) to “provide a basis on which to prioritize conservation efforts.” Stevenson Aff. ¶ 3b. In his affidavit, Stevenson also describes the process by which a PVA should be implemented.
See id.
Philip Michael Payne, NMFS’s Recovery Plan Coordinator until April, 1996, states that NMFS is currently funding a project recommended by Dr. Caswell of the Woods Hole Oceanographic Institute, that incorporates many of Stevenson’s suggestions.
See
Payne Dec. at 16-18. To be sure, it appears the NMFS research does not fully adopt Stevenson’s suggestions. In this connection, Payne states that “NMFS has... analyzed the possibility of doing a PVA analysis for the species but determined that such an exercise would not be useful.”
Id.
at 17. And with respect to the annual census recommended by Stevenson,
see
Stevenson Aff. ¶ 3a, Payne asserts that:
[s]etting aside for the moment whether such annual surveys are even possible, [experts] have shown that detecting a baseline using idenpendent [sic] counts over time in a small population is difficult and they recommend against basing management on such an approach---- In other words, we would only detect that the population [of Right whales] was declining when it reaches a size of 42 animals, which clearly is not acceptable. Therefore, even if rights whale surveys are done every year, they will not succeed in adequately monitoring the population....
It will likely be far better to put resources into the photo-id analyses, rather than into aerial or ship surveys.
Payne Dec., at 14-15. Experts in the field plainly have different opinions as to what measures should be taken most effectively to promote conservation efforts for Right whales. It is also plain, however, specifically from the Payne Declaration, that NMFS has considered the alternatives suggested by the plaintiff.
20
The fact that NMFS did not adopt precisely the recommended measures in its recovery plan, does not make that plan deficient. Indeed, especially when expert, scientific judgments are involved, the court must afford the agency’s decision a great deal of deference.
Bays’ Legal Fund v. Browner,
828 F.Supp. 102, 107 (D.Mass.1993).
21
*599
Last, I find that the recovery plan does contain “objective, measurable criteria,” § 4(f)(l)(B)(ii), and “a description of site-specific management actions,” § 4(f)(l)(B)(i). In terms of “objective, measurable criteria,” the recovery plan states that the recovery goal is 7000 animals.
See
Final Recovery Plan for the Northern Right Whale, at 13. (CG AR VIA, Doc. 163.) The plaintiff argues that this goal is unrealistic and meaningless without a provision for interim goals. I find nothing in § 4(f) that mandates such interim goals.
22
I also find that the Recovery Plan satisfies the “site-specific” requirement. The term “site-specific” has been interpreted to refer to geographical areas, requiring that the agency “in designing management actions, consider the distinct needs of separate ecosystems or recovery zones occupied by a threatened or endangered species.”
Fund for Animals,
903 F.Supp. at 106 . The Recovery Plan meets this requirement because it considers the separate needs of the northern Atlantic population and the northern Pacific population.
See
Recovery Plan, Chapter III, Chapter IV. Additionally, the plan also addresses the different habitats of Northern Right whales at different times of year and contains measures specifically directed at each habitat.
See id.
at 5-7, 17-18. I find that the Recovery Plan is not arbitrary and capricious.
The plaintiff argues that even if the Recovery Plan is not arbitrary and capricious, NMFS has still violated the ESA because it has not implemented the plan. To support this contention, the plaintiff lists (and has charted,
see
Pi’s Exh. I), certain goals limned in the Recovery Plan that are not yet in effect. While it appears that some of the Recovery Plan’s goals have not been implemented,
e.g.,
“appropriate seasonal or geographic regulations for the use of certain fishing gear in” the Bay of Fundy and the Southern Nova Scotia Shelf, I find plaintiff’s allegations to be largely unfounded and needlessly technical. For example, the plaintiff states that no regulations on whale-watch vessels exist today.
See
Pi’s Opp., at 18. In February, 1997, however, NMFS issued a rule restricting
all
vessels and aircraft from approaching Right whales at a distance closer than 500 yards. Moreover, while the plaintiff asserts that “NMFS still has not located the unknown wintering area it alleges exists,” Pi’s Opp., at 17, Philip Michael Payne avers that the research enabling NMFS to “find the unknown summer nursery and wintering grounds” is ongoing. Payne Dec., at 22-23.
See also
Deposition of Douglas W. Beach, at 199. (Ettinger Aff., Exh. 71.) After considering these efforts, I find that NMFS is taking steps to implement its Recovery Plan and that no ESA violation exists. I will grant summary judgment for the defendants on Count XIII.
23
3. The Takings Claims
In Count IX, the plaintiff alleges that the Coast Guard has violated § 9 of the ESA which prohibits any person from “taking” a listed species. 16 U.S.C. § 1538 (a)(1)(B). Count X alleges the same violation under the analogous provisions of the MMPA, 16 U.S.C. § 1372 (a)(1). The plaintiffs “takings” claims are divided into “takings” by Coast Guard vessels and “takings” by non-Coast Guard vessels to whom the Coast Guard has issued Certificates of Documentation.
A. Coast Guard Vessels
The statute defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect....” 16 U.S.C.
*600
§ 1532(19). There is no dispute that Coast Guard vessels have “taken” two Right whales and one Humpback whale in the last seven years.
24
The relief the plaintiff seeks as a result of these determinations, however, has not been shown to be necessary or supportable. In his Prayer for Relief, the plaintiff requests that this Court issue a declaratory judgment “that taking of Federally Protected Whales by the Coast Guard in the course of their operation of vessels on the marine waters of The [sic] United States without any ‘small take permit’ to do so... constitutes an illegal taking of the Northern Right whale and other Federally Protected Whales and is in violation of the prohibitions of the MMPA.” Am. Complaint, Prayer for Relief ¶ 5. Given the admissions of the defendants, such a declaration would be supererogatory.
The plaintiff also requests specific, injunctive relief that will prevent future takings.
25
The standard applied by the First Circuit to determine whether a court should grant injunctive relief is whether “petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species.”
American Bald Eagle v. Bhatti
9 F.3d 163, 166 (1st Cir.1993).
See also Strahan v. Coxe,
939 F.Supp. at 986. Accordingly, I will consider the likelihood of future takings, using as evidence,
inter alia,
the three takings to which the Coast Guard admits. It is clear, and the defendants admit, that if the Coast Guard’s conduct that resulted in the three takings were to continue, the evidence would be sufficient to meet the First Circuit’s standard. The defendants assert, however, that “none of those takes occurred with the present whale protection programs in place.” Dft’s Opp., at 15. They further argue that NMFS, in its 1996 Biological Opinion, determined that adoption of the APLMR is likely to prevent the Coast Guard from taking any more whales. See
id.
The plaintiff, by contrast, claims that the defendants’ new procedures “are mere window dressing which are unlikely to stop the killings.” Pi’s Reply, at 10. Accordingly, an examination of the Reasonable and Prudent Alternatives suggested in the 1996 Biological Opinion is warranted. Briefly, the RPA instructed that: (1) “All conservation recommendations from the September 1995 biological opinion that concern endangered whales must be implemented.... Progress on the actual effects of implementation must be determined, and a report provided to NMFS annually beginning with the first report due January 1, 1997____(2) “The Coast Guard must post dedicated lookouts during all transits ... in all areas of whale concentrations and high use by right whales ... (3) “The Coast Guard must make sure that all dedicated lookouts have successfully completed the marine mammal training program ....”; (4) The relevant areas must “provide support for aerial surveys during periods of high use ____(5) “all District guidance documents must be revised to clearly require use of the ‘slow safe speed standard ---- (6) “the
*601
Coast Guard must participate in investigating, testing and implementing technological solutions to prevent vessel strikes____(7) “the Coast Guard will adopt a policy during non-emergency operations of not approaching whales head-on and not approaching right whales within 500 yards and all other whales within 100 yards.... (8) “The Coast Guard must provide information to commercial and recreational vessel operators that is geared to avoiding collisions with endangered whales---- (9) “The Coast Guard must ... provide timely information on current locations of all endangered whales to commercial vessels____(10) “The Coast Guard must notify NMFS of any event that will take place in critical habitat and in areas of high-use or concentration for all listed species including right whales.”; (11) “[T]he Coast Guard shall work in conjunction with other agencies to designate critical habitat and high-use areas as Particularly Sensitive Areas____”.
Id.
at 26-29.
26
These recommendations cover most of the substance that Strahan requests in his Prayer for Relief.
27
It is important to note, at this juncture, that the ESA’s requirements are stringent and unyielding.
See TVA v. Hill,
437 U.S. 153, 173-74 , 98 S.Ct. 2279, 2291-92 , 57 L.Ed.2d 117 (1978). Indeed, “examination of the language, history, and structure of the legislation ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.”
Id.
at 174 , 98 S.Ct. at 2292 . Moreover, “it is clear Congress foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.”
Id.
at 186, 98 S.Ct. at 2298 . With respect to the conservation of the Northern right whale, therefore, the ESA’s requirement that a federal agency “insure that any action ... is not likely to jeopardize the continued existence of any endangered species or threatened species ...” 16 U.S.C. § 1536 (a)(2), if most strictly interpreted, could require the Coast Guard to cease all operations along the Atlantic Coast. Such an order would not be appropriate. Indeed, the plaintiff himself does not request such drastic measures. The question becomes, then, a matter of calibration — how many protective measures are enough to satisfy the ESA? At this point on this record, I find that the measures suggested in the 1996 Biological Opinion sufficiently decrease the likelihood the future takings of Right whales to justify a determination that plaintiff cannot establish that the Coast Guard’s activities under the APLMR regime will, if continued, “actually harm” Right whales.
Bhatti,
9 F.3d at 166 .
28
More specifically, I find that, if implemented, the protective measures in the APLMR and the 1996 Biological Opinion will insure, to the same extent as the measures proposed by Strahan, that future takings will not occur. Accordingly, I find that plaintiff has not supported a case for further injunctive relief.
B. Non-Coast Guard Vessels
The plaintiff also argues that the Coast Guard should be liable for “takings” by non-Coast Guard vessels to whom it has issued a Certificate of Documentation. As I
*602
previously have determined, the Coast Guard’s issuance of Certificates of Documentation is not discretionary and so does not trigger the ESA.
See Strahan v. Linnon,
CA No. 94-11128-DPW, Memorandum and Order, May 2, 1995,
infra
at 621. Accordingly, the plaintiff’s theory of liability cannot stand.
I will grant summary judgment for the defendants as to Counts IX and X.
IV. NEPA
In Count IV of the Amended Complaint, the plaintiff alleges that the Coast Guard “has not complied with the non-discretionary duties imposed on it by NEPA.” (Amended Complaint ¶ 66.) Specifically, the plaintiff argues that the Final Environmental Impact Statement (“FEIS”) failed to consider the environmental impact of its proposed actions, failed to assess the cumulative impact of its actions on the environment and failed adequately to evaluate alternatives to its proposed solution.
The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321
et seq.,
“declares a broad national commitment to protecting and promoting the environmental quality.”
Dubois v. United States Dep’t of Agriculture,
102 F.3d 1273, 1285 (1st Cir.1996),
petition for cert. filed,
65 USLW 3675 (U.S. Mar. 28, 1997) (No. 96-1539) (citing
Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 348 , 109 S.Ct. 1835, 1844-45 , 104 L.Ed.2d 351 (1989)). Under NEPA, an agency considering any action that will have a significant impact on the environment must prepare an Environmental Impact Statement (“EIS”) [t]o ensure that this commitment is infused into the ongoing programs and actions of the Federal Government.’ ”
Id.
(quoting
Robertson,
490 U.S. at 348 , 109 S.Ct. at 1844-45 ). The EIS must be a “detailed statement” including,
inter alia,
a discussion of the environmental impact of and the alternatives to the proposed project.
See
42 U.S.C. § 4332 (C). “These duties are essentially procedural.”
Roosevelt Campobello International Park Commission v. U.S.E.P.A., 684
F.2d 1041, 1045 (1st Cir.1982) (internal quotations omitted). The EIS, therefore, “helps satisfy NEPA’s ‘twin aims’: to ensure that the agency takes a ‘hard look’ at the environmental consequences of its proposed action, and to make information on
the
environmental consequences available to the public.”
Dubois,
102 F.3d at 1285 (citing
Robertson,
490 U.S. at 350 , 109 S.Ct. at 1845-46 ).
A. Reasonable Alternatives
The Council on Environmental Quality (“CEQ”) regulations state that the consideration of alternatives is “the heart of the environmental impact statement.” 40 C.F.R. § 1502.14 . Moreover, the regulations require that the EIS “[rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.”
Id.
§ 1502.14(a). The plaintiff asserts that the FEIS fails to discuss adequately the possible alternatives to the proposed project. Specifically, the plaintiff argues that the FEIS discusses only two alternatives: “the ‘no action alternative’ and the APLMR Initiative.” (Pi’s Memo, at 19.) “In essence,” the plaintiff alleges, “the FEIS analyzed whether to implement some mitigation measures or none; however, it fails to provide the analysis or information necessary to decide which mitigation measures should be implemented.”
(Id.)
According to the plaintiff, therefore, the FEIS is fatally flawed. An examination of the FEIS reveals that both the plaintiffs premise and his conclusion are incorrect.
The Coast Guard’s duty under NEPA “is to study all alternatives that ‘appear reasonable and appropriate for study at the time’ of drafting the EIS, as well as ‘significant alternatives’ suggested by other agencies or the public during the comment period.”
Roosevelt Campobello,
684 F.2d at 1047 (citing
Seacoast Anti-Pollution League v. NRC,
598 F.2d 1221 , 1228-33 (1st Cir.1979)). The range of reasonable alternatives is “dictated by the nature and scope of the proposed action.”
City of Carmel-By-TheSea v. United States Dep’t of Transportation,
95 F.3d 892 , 903 (9th Cir.1996) (quoting
Alaska Wilderness Recreation v. Morrison,
67 F.3d 723 , 729 (9th Cir.1995)). Additionally, “[a]n agency’s consideration of alternatives is adequate ‘if it considers an appropriate range
*603
of alternatives, even if it does not consider every available alternative.’ ”
Resources Limited, Inc. v. Robertson, 35
F.3d 1300, 1307 (9th Cir.1994) (quoting
Headwaters, Inc. v. Bureau of Land Management,
914 F.2d 1174, 1180-81 (9th Cir.1990)). I find that the Coast Guard’s discussion of alternatives in the FEIS is adequate.
First, the FEIS demonstrates a detailed comparison of the “No Action Alternative” and the “Preferred Alternative,” evaluating factors such as the potential impact on the physical, biological and socioeconomic environments.
See
FEIS at 3-18-3-24. If this detailed account were the only discussion of alternatives, I might agree with the plaintiff that the FEIS is insufficient. The FEIS’s discussion of alternatives, however, is not limited to this comparison. For example, the FEIS also briefly evaluates and explains its reasons for rejecting recommendations such as “the USCG ceasing to conduct all marine activity in coastal and offshore waters,” “conducting
all
USCG vessel operations at slow speed and operating
all
aircraft at higher altitudes,” “avoiding all critical habitats ... during times when the protected species are likely to be present.”
See id.
at 3-17-3-18. Additionally, the FEIS discusses the rejected possibility of adopting “variations of the proposed action.”
Id.
at 3-16. Moreover, the FEIS also addresses specific comments that were received during the comment period for the Draft Environmental Impact Statement.
See id.
at 3-12-3-14; FEIS, Appendix Q.
29
Under the rule of reason typically applied by courts “in determining whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequenees[,]”
Dubois,
102 F.3d at 1287 , I find that the FEIS’s discussion of alternatives to the proposed action withstands scrutiny. I note that “as long as the [Coast Guard] ’s decision is fully informed and well-considered, it is entitled to judicial deference and a reviewing court should not substitute its own policy judgment.”
Natural Resources Defense Council, Inc. v. Hodel,
865 F.2d 288, 294 (D.C.Cir.1988) (quoting
North Slope Borough v. Andrus,
642 F.2d 589, 599 (D.C.Cir.1980)). I find that the discussion of alternatives, combined with the detailed response to comments is sufficient to trigger such judicial deference.
Cf. id.
at 297 (“We are satisfied ... [with] ... the Secretary’s coverage of conservation ... although the FEIS and NEPP themselves deal with the matter in general terms and do not provide petitioners with detailed responses to their comments.”);
City of Tenakee Springs v. Clough,
915 F.2d 1308, 1312 (9th Cir.1990) (“We believe ... that the Service’s failure seriously to consider any alternative ... raises serious questions of compliance with applicable law.”) I also note that because the nature of the proposed action does not have a self-limiting range of potential alternatives, it would be an unwarranted burden to hold the agency responsible for analyzing every possible alternative.
Cf. Dubois,
102 F.3d at 1289 , 46 Fed.Reg. 18026, 18027 (1981). I find the discussion of alternatives sufficient.
B. Cumulative Impacts
The plaintiff also faults the FEIS for not discussing adequately the cumulative im
*604
pact of the proposed action. Specifically, the plaintiff contends that “[rjather than analyzing the effects of its operations and the cumulative effects of operations of non-Coast Guard vessels,” the FEIS “evaluated [only] the cumulative impact of the already-selected mitigation program itself.” (Pi’s Memo, at 22) (internal quotations and citations omitted). I find this contention to be without merit.
NEPA requires that an EIS contain an analysis of its own environmental consequences “when added to other past, present and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7 . I find that the FEIS adequately addresses the cumulative effects of its proposed action and the actions of non-Coast Guard vessels. Indeed, the FEIS compares the cumulative impact of the “No Action Alternative” and the “Preferred Alternative,” when no such comparison is required. In its discussion of the cumulative impact of the “No Action Alternative,” the FEIS gives a fairly detailed account of the number of non-Coast Guard vessels and their effect on the physical, biological and socioeconomic environment along the United States Atlantic Coast.
See
FEIS at 5-18-5-23. The same detailed analysis is repeated during the discussion of the “Preferred Alternative.”
See id.
at 5-31-5-33. Additionally, an extremely detailed discussion of the presence and effects of fishing and whale-watch vessels is also included in the FEIS.
See id.
at 4-81-4-91. I find that these discussions amount to more than “perfunctory references [that] do not constitute analysis useful to a decisionmaker in deciding whether, or how, to alter the program to lessen cumulative environmental impacts.”
Natural Resources Defense Council, Inc. v. Hodel,
865 F.2d 288, 299 (D.C.Cir.1988).
30
Again under a rule of reason standard, I “conclude that the [F]EIS contains a ‘reasonably thorough discussion’ of these impacts.”
Resources Limited, Inc. v. Robertson,
35 F.3d 1300, 1306 (9th Cir.1993).
C. Current Data
The plaintiff also asserts that the FEIS did not rely on current data. While it is true that an environmental impact statement must be based on current data,
see Carmelr-by-the-Sea,
95 F.3d at 900, the plaintiff nowhere points to specific data relied upon in the FEIS that was outdated or inaccurate. Moreover, inasmuch as the FEIS relied on data from the Biological Assessment and the 1995 and 1996 Biological Opinions, I find that the data in those documents is sufficiently current to satisfy NEPA’s requirement that the agency take “a ‘hard look’ at the environmental consequences of its proposed action.”
Dubois,
102 F.3d at 1285 . I find that the Coast Guard took a hard look at the consequences its activities have on Right whales and that the FEIS was not arbitrary or capricious.
Id.
at 1289 . Accordingly, I grant summary judgment for the defendants on Count IV.
V. Miscellaneous
A. Non-Enforcement
The plaintiff and defendants also move for summary judgment on Counts XXI and XXII which allege that the Commerce Defendants have violated Section 107 of the MMPA, 16 U.S.C. § 1377 , and Section 11 of the ESA, 16 U.S.C. § 1540 , because they have failed to enforce the relevant provisions of those statutes. I find that this allegation is wholly without merit and I will grant summary judgment for the defendants.
Even the plaintiff concedes the general proposition that as to decisions of an agency not to take enforcement steps “the presumption is that judicial review is not available.”
Heckler v. Chaney,
470 U.S. 821, 831 , 105 S.Ct. 1649, 1655 , 84 L.Ed.2d 714 (1985). Accordingly, plaintiff attempts to ob
*605
tain judicial review by arguing that the agency has “consciously and expressly adopted a general policy [of nonenforcement] which is in effect an abdication of its statutory duty.”
Adams v. Richardson,
480 F.2d 1159, 1162 (D.C.Cir.1973) (en banc).
31
This abdication argument fails. First, despite the plaintiffs anecdotal evidence,
32
I find that the record here does not demonstrate that NMFS has adopted a policy of non-enforcement. To the contrary, the record demonstrates that NMFS does enforce the ESA and the MMPA with some degree of vigor. For example, “[s]ince 1990, NMFS has opened approximately 427 investigations of alleged violations of the ESA and MMPA in the Northeastern United States. Of these 427 investigations, NMFS or NOAA issued 60 Notices of Violations and Assessment (‘NOVAs’), sought approximately 97 property forfeitures, issued about 92 written warnings, and offered approximately 17 summary settlements____ The remaining investigations were either dismissed or are still pending.” Declaration of David A. McKinney ¶ 5 (Dft’s Motion in Support of Summary Judgment, Exh. C.) Such evidence of enforcement precludes any claim of abdication.
See e.g., Cutler v. Hayes,
549 F.Supp. 1341, 1347 (D.D.C.1982),
aff'd in part, vacated in part,
818 F.2d 879 (D.C.Cir.1987) (affidavit of the acting director of the FDA stating that FDA had taken enforcement actions, listing seventeen examples in ten years demonstrates that “the FDA has not adopted a policy of total non-enforcement.”).
Moreover, in order to maintain a “failure to enforce claim” under the Administrative Procedure Act, there must be no adequate alternative remedy.
See Women’s Equity Action League v. Cavazos,
906 F.2d 742, 751 (D.C.Cir.1990). Here, section 11 of the ESA provides the plaintiff with opportunity to sue a non-federal party directly for an alleged violation of the take prohibitions. 16 U.S.C. § 1540 (g)(1). Although the plaintiff asserts that direct lawsuits against individual violators would be difficult, that circumstance does not defeat the policy that “situation-specific litigation affords an adequate, even if imperfect, remedy.”
Id. See also Washington Legal Foundation v. Alexander,
984 F.2d 483, 485 (D.C.Cir.1993). I will grant the defendants’ motion for summary judgment on Counts XXI and XXII.
B. Cooperative Agreement
Count XXIII of the Amended Complaint alleges that NMFS has violated Section 6 of the ESA, 16 U.S.C. § 1535 by entering into a Cooperative Agreement with the Commonwealth of Massachusetts because the Commonwealth does not have “an adequate conservation program for the Northern Right whale and other Federally Protected Whales” and “Massachusetts does not have plans for ‘immediate attention’ to be given to
*606
provide adequate protection to the Federally Protected Whales.” (Amended Complaint ¶¶ 170a-b.) I find the plaintiffs allegations to be meritless.
Specifically, the plaintiff contends that the Cooperative Agreement violates the ESA because Massachusetts does not have “an established acceptable conservation program.” 16 U.S.C. § 1535 (c)(1)(B). In related litigation, I have been addressing on an interlocutory basis the Commonwealth’s responsibilities regarding the Northern Right whale and have determined that the Commonwealth needed some encouragement to develop its policies in this area under the ESA
See generally Strahan v. Coxe,
939 F.Supp. 963 (D.Mass.1996). The ESA does not require, however, that Massachusetts have a satisfactory conservation plan in order to enter into a cooperative agreement with NMFS. In fact, all that is required is that the state have plans “under which immediate attention will be given to those resident species of fish and wildlife which are determined by the Secretary or the State agency to be endangered or threatened and which ... are most urgently in need of conservation programs.” 16 U.S.C. § 1535 (c)(l)(ii). The Commonwealth, under prodding
from
this Court — to be sure — is now engaged in a program to give immediate attention to its obligation regarding Right whales under the ESA. The Cooperative Agreement does not violate the statute.
C. Failure to Act
Counts XVIII and XIX assert that NMFS and the Coast Guard have failed to act with respect to certain petitions filed by plaintiff Strahan regarding approach distances for federally protected whales.
33
Accordingly, the plaintiff requests that this Court “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706 (1)(APA). I find that these claims are moot because NMFS issued an interim final rule establishing a 500-yard buffer zone around Right whales on February 13, 1997. 62 Fed. Reg. 6729 . The plaintiff asserts that this rule does not address other species of federally protected whales and so insists that NMFS has still failed to act on Strahan’s petition. This assertion, however, is factually incorrect because the rule states:
NMFS did not propose restrictions on approaches to any species except right whales. As indicated above, NMFS believes that such restrictions should be evaluated on a species — and region — specific basis, and NMFS has not completed those evaluations at this time.
Id.
at 6733. Accordingly, NMFS acted on Strahan’s petition by accepting his recommendations as to Right whales and rejecting for the time being his recommendations with respect to all other species. That NMFS did not act in a way that the plaintiffs find acceptable, does not constitute a failure to act. I also find that the Coast Guard acted, through its Record of Decision, issued on December 9, 1996 which stated that NMFS was the appropriate agency to issue the requested regulations and that it would defer to NMFS.
See
Record of Decision ¶ 2 (Docket No. 161.) Again, an unfavorable decision is not the same as no decision at all.
At oral argument, the plaintiff intimated that he was also challenging the merits of the interim final rule as issued. The defendants contest the legitimacy of such a substantive attack claiming that the pleadings cannot be stretched to cover such a claim. Although I have interpreted the pleading and jurisdictional requirements generously elsewhere in this Memorandum and Order, I find that the line must be drawn in this instance. Counts XVIII and XIX do not even mention the merits of NMFS’s February 13,1997 interim final rule. They merely allege a failure to act on Strahan’s petitions. Such allegations do not provide a basis for a substantive attack. Accordingly, I find that
*607
such an attack is inappropriate at this juncture. I will, therefore, grant summary judgment to the defendants on Counts XVIII and XIX.
D. 50 C.F.R. § 402.03
In Count XX, the plaintiff asserts a facial challenge to the validity of 50 C.F.R. § 402.03 which states that “Section 7 [of the E.S.A.] and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control,” alleging that it is inconsistent with the “plain language” of the ESA which mandates that “[ejach Federal Agency shall, in consultation with and with the assistance of the Secretary, insure that
any
action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species.... ” 16 U.S.C. § 1536 (a)(2). The plaintiff argues that because the regulation and the statute are inconsistent, the regulation is beyond the agency’s authority.
See United States v. Larionoff,
431 U.S. 864, 873 , 97 S.Ct. 2150, 2156 , 53 L.Ed.2d 48 (1977). This claim must fail for several reasons.
First, the defendants are correct that the statute of limitations for challenging the regulation has expired. The statute of limitations governing actions against the United States requires that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401 (a). The regulation in question was promulgated on June 3, 1986. 51 Fed.Reg. 19957. The plaintiff argues that this statute of limitations does not apply to “agency promulgated regulations of continuing application.” Pi’s Opp., at 22. I do not find, however, the plaintiff’s argument persuasive on this point as a matter of logic. Moreover, the case law he cites does little to help his position. For example, in
Wind River Mining Corp. v. United States,
946 F.2d 710, 715 (9th Cir.1991), the court determined that “if the person wishes to bring a policy-based facial challenge to the government’s decision, that [] must be brought within six years of the decision.” I find that the plaintiffs challenge to 50 C.F.R. § 402.03 is such a “policy-based” facial challenge in that his claim is that the regulation is plainly inconsistent with Congress’ mandate in the ESA. Accordingly, the “grounds for such [a] challenge[] [should have been] apparent to any interested citizen within a six-year period following the promulgation of the [regulation].”
Id. Wind River Mining
excuses litigants from the six-year requirement only when the challenger “file[s] a complaint for review of the
adverse application
of the [regulation] to the particular challenger.”
Id.
(emphasis added). That exception does not apply to the plaintiff.
34
Even if the statute of limitations did not bar the plaintiffs challenge to this regulation, I find the plaintiffs construction of § 7(a)(2) troubling in that it gives too broad a definition to the meaning of “agency action” in that statute. Indeed, I find that the consultation requirement applies only to discretionary actions because, as I stated in my May 2, 1995 Memorandum and Order, “[i]f the federal agency has no discretion to modify the activity at issue to accommodate the mandate of the ESA, then the consultation process would be pointless.”
Strahan v. Linnon,
CA No. 94-11128-DPW, Memorandum and Order, May 2, 1995,
infra
at 621. This interpretation was also adopted by the Ninth Circuit in
Sierra Club v. Babbitt,
65 F.3d 1502, 1504-05 (9th Cir.1995). In
Sierra
Club, the court stated “[i]n light of the statute’s plain language ... we conclude that where, as here, the federal agency lacks the discretion to influence the private action, consultation would be a meaningless exercise; the agency simply does not possess the ability to implement measures that inure to the benefit of the protected species.”
Id.
at 1509 . I also note that the agency interpretation must, in any event, be afforded substantial deference and the courts “[are] reluctant to substitute our views of wise policy for his.”
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
— U.S.-,-, 115 S.Ct. 2407, 2418 , 132 L.Ed.2d 597 (1995).
*608
Accordingly, if required to reach the issue, I would find that 50 C.F.R. § 402.03 is not inconsistent with the ESA and is therefore not invalid. I will grant summary judgment to the defendants on this issue.
35
VI. Conclusion
For the reasons stated more fully above, I GRANT summary judgment to the defendants in the entirety and I DENY partial summary judgment to the plaintiff. This, of course, does not constitute endorsement of defendants’ belated compliance with the ESA, the MMPA, and NEPA. They have had to be cajoled by ease management initiatives of this Court to participate in the procedures mandated by those statutes.
36
But they have now done so and there is no further role for the Court at this time.
It bears emphasizing, as well, that I act only as to the claims alleged on the present record. While on this record I find that the defendants’ APLMR Initiative reduces the risk of harm to endangered marine mammals sufficiently that no showing of actual harm to the species in the future has been made, the defendants must remain vigilant in their protection of the species. The Congressional mandate, as expressed by the Supreme Court in
TVA v. Hill,
437 U.S. at 180 , 98 S.Ct. at 2294-95 , is clear: agencies “must use.. .all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which” they are no longer listed. (Internal quotations and citations omitted). That is a continuing responsibility which survives this litigation.
APPENDIX I
LEXICON OF ACRONYMS
APLMR Initiative — Atlantic Protected Living Marine Resources Initiative; a program promulgated by NMFS and adopted by the Coast Guard as the preferred alternative to the proposed agency action.
APA — Administrative Procedure Act, 5 U.S.C. § 701
et seq.
BA — Biological Assessment; An analysis of the biological impacts of a proposed agency action on specified threatened or endangered species in the area of the proposed project, prepared by the agency.
See
16 U.S.C. § 1536 (c).
BO
— Biological Opinion; An analysis of the biological impacts of proposed agency action on specified threatened or endangered species in area of proposed agency action, prepared by the Secretary. If the Biological Opinion determines that the proposed action will jeopardize the threatened or endangered species, it must propose a Reasonable and Prudent Alternative to avoid jeopardy.
See
16 U.S.C. § 1536 (b).
Category I — NMFS classification of fishery with highest level of incidental mortalities and serious injuries of marine mammals.
Cooperative Agreement — The ESA authorizes the Secretary to enter into cooperative agreements in furtherance of the Act with a state meeting certain criteria.
See
16 U.S.C. § 1535 (c).
Conservation Plan — Under the MMPA, the Secretary must prepare a plan with the purpose of preserving and restoring any listed
*609
stock to its optimal sustainable population.
See
16 U.S.C. § 1383b(b)(l).
CEQ — Council on Environmental Quality; Council composed of three members, appointed by the President to formulate and recommend national policies to promote the quality of the environment.
See
42 U.S.C. §§ 4342 -^1344. Promulgates regulations Federal agencies must follow.
EA — Environmental Assessment; Under the regulations, the agency must prepare an assessment of the impacts of its proposed conduct on the environment, including all the necessary information to determine whether an Environmental Impact Statement is required under NEPA.
EIS — Environmental Impact Statement; NEPA requires that included in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment must be a detailed report on the environmental impact of the proposed action.
See
42 U.S.C. § 4332 (C).
DEIS
— Draft Environmental Impact Statement; Published for public review and comment on July 31,1996.
FEIS
— Final Environmental Impact Statement; Published on October 31,1996.
ESA — Endangered Species Act, 16 U.S.C. § 1531
et seq.
FONSI — Finding of No Significant Impact; If the agency determines, in its Environmental Assessment that the proposed action will not have serious environmental consequences, it may issue a FONSI. If a FONSI issues, no Environmental Impact Statement is required.
MMPA — Marine Mammal Protection Act, 16 U.S.C. § 1371
et seq.
NEPA — National Environmental Policy Act, 42 U.S.C. § 4231
et seq.
NMFS — National Marine Fisheries Service; The agency overseeing the ESA consultation process.
Recovery Plan — The ESA mandates that the Secretary shall develop and implement plans for the conservation and survival of endangered species, unless he finds that such a plan will not promote the conservation of the species.
See
16 U.S.C. § 1533 (f).
RPA — Reasonable and Prudent Alternative; If a Biological Opinion concludes that the proposed agency action will jeopardize the existence of an endangered or listed species, it must offer a Reasonable and Prudent Alternative to the proposed action that will avoid jeopardy.
See
16 U.S.C. § 1536 (b)(3)(A).
ROD — -Record of Decision; Official record of Coast Guard’s adoption of the Final Environmental Impact Statement adopting the APLMR Initiative. Published on December 9,1996.
Stock Assessment — the MMPA requires that the Secretary shall report annually in the Federal Register and to Congress on the current status of all marine mammal species and population stocks that are subject to the Act.
TRP — Take Reduction Plan; Under the MMPA, the Secretary must develop and implement a plan designed to assist in the recovery or prevent the depletion of the listed strategic stocks of marine mammals.
See
16 U.S.C. § 1387 (f).
TRT — Take Reduction Team; Under the MMPA, after the Secretary has issued a stock assessment for a strategic stock of marine mammals, he may establish a team of experts in the conservation or biology of the species which the TRP will address.
See
16 U.S.C. § 1387 (f)(6).
APPENDIX II
United States District Court District of Massachusetts
Richard Max Strahan, Plaintiff, v. Rear Admiral John L. Linnon, Commander First District, United States Coast Guard and Admiral Robert E. Kramek, Commandant, United States Coast Guard, Defendants.
Civil Action No. 94-11128-DPW
MEMORANDUM AND ORDER
May 2, 1995
(As Corrected May 19, 1995)
I.
This case presents a challenge to neglect by the United States Coast Guard of its
*610
duties under the Endangered Species Act (“ESA”) and related environmental provisions. Despite ESA’s mandate, the Coast Guard failed to initiate formal procedures to address the impact of its activities on various endangered marine mammals, including the Northern Right whale, until after the instant complaint was filed. The Coast Guard has not yet applied for an ESA incidental take permit or a Marine Mammal Protection Act (“MMPA”) small take permit
from
the National Marine Fisheries Service (“NMFS”), despite the fact that at least two Northern Right whales were killed (“taken”) by Coast Guard vessels in violation of the ESA and MMPA. Nor has the Coast Guard completed an environmental assessment as directed by the National Environmental Policy Act (“NEPA”).
Plaintiff Richard Max Strahan, a preservationist, has alleged violations of four federal statutes: the National Environmental Policy Act and the Endangered Species Act, the Marine Mammal Protection Act, the Whaling Convention Act (“WCA”). In essence, Strahan claims that: (1) Coast Guard vessels disturb and injure the whales; (2) the Coast Guard documents and inspects many domestic marine vessels, including “whale watch” vessels, thereby allowing them to disturb and injure the whales; (3) the Coast Guard does not enforce the ESA or the MMPA; and (4) the Coast Guard has not assessed the potential impact of its activities on the environment, as required by NEPA. The defendants move for summary judgment; Strahan moves for a preliminary injunction.
Given the defendants’ dilatoriness and neglect in initiating mandated procedures, I decline to grant the defendants’ motion for summary judgment on the counts
1
regarding ESA consultation, conservation, and permitting (Counts I, III and IX); MMPA permitting, (Count X); and NEPA environmental assessment preparation (Count IV).
I will, however, grant the defendants’ motion for summary judgment on Counts II (ESA — Certificates of Documentation and Inspection), V (ESA — whale watch vessels), VI (ESA enforcement), VII (MMPA enforcement), and VIII (WCA enforcement).
I also will grant, in part, Strahan’s motion for a preliminary injunction, to the extent of directing that the Coast Guard initiate and expeditiously fulfill the procedural requirements of the ESA, MMPA, and NEPA. Because plaintiff has not made a sufficient showing that anticipated Coast Guard operations are likely to cause irreparable harm in the interim, I decline to order on an interlocutory basis that the Coast Guard modify its vessel operations in the specific manner Strahan has requested.
II.
Background
A.
The Species and Their Regulatory Protection
Strahan, an officer of GreenWorld, Inc., brings suit “on behalf of’ the following species of whales: the Northern Right whale
{Eubalaena
glcxialis); the Humpback Whale
(Megaptera
novaenagliae); the Fin whale
{Balaenoptera
physalus); the Sei whale
{Baleanoptera
borealis); the Blue Whale
{Balaenoptera
musculus); and the Minke whale
{Balaenoptera acutorostrata).
The first five species have been listed as endangered. (Complaint ¶ 1; Amended Ans. ¶ 1.) The complaint and submissions focus on the Northern Right whale.
Right whales are the most endangered of the large whales, despite the fact that they have been protected from commercial whaling since 1935.
2
There are only approximately 300 to 350 individual Right whales in the western North Atlantic, and the eastern North Atlantic population may be nearly extinct. 59 Fed.Reg. 28,793. Many human activities can disrupt the Right whale, including vessel activities, commercial fishing, and pollution. 59 Fed.Reg. 28,796-28,797.
Vessel activities can change whale behavior, disrupt feeding practices, disturb courtship rituals, disperse up food sources
*611
and injure or kill whales through collisions. Thirty-two percent of the known standings of northern right whales since 1970 have been caused by human activities.
59 Fed.Reg. 28,796 (citation omitted). More specifically, “[sjeven percent of northern right whales identified have propeller scars from a large vessel,” and “[mjore than one-half of all cataloged animals have scars indicative of entanglements with fishing gear, resulting in scars, injuries, and death.” 59 Fed.Reg. 28,796 (citations omitted). “Twenty-nine percent of the documented right whale mortalities have been due to ship strikes, and 11% of the right whales in the New England Aquarium photographic files have pi'opeller scars.” (Nexxhauser Aff. ¶ 5.)
The Humpback and Fin whales, which Stahan also seeks to protect, are listed as endangered but are much less vulnerable than the Right whale. There are approximately 5,505 Humpback whales in the western North Atlantic. (Beach Decl. ¶3.) The growth rate for Humpbacks has been estimated at 9.4% during the 1980’s.
Id.
There are at least several thousand Fin whales in the western North Atlantic, and the Fin whale “is considered abundant compared to other large whale species.”
Id.
¶4. Blue whales and Sei whales are severely depleted in population but only rarely visit the Gulf of Maine. (Beach Decl. ¶ 6 and ¶ 7.) The Minke whale is not listed as endangered or threatened, and the North Atlantic Minke whale population is estimated to be approximately 60,500 to 117,500. (Beach Decl. ¶ 8.)
On March 13, 1992, the National Marine Fisheries Service (“NMFS”), which is responsible for enforcing the Endangered Species Act, issued a final “Recovery Plan for the Northern Right Whale.” 57 Fed.Reg. 8,862.
On August 3, 1992, NMFS issued a proposed rule setting a minimum approach distance of 100 yards for all whales and 50 yards for dolphins and porpoise. 57 Fed. Reg. 34,101 , 34,103. This proposal was withdrawn on March 29, 1993. 58 Fed.Reg. 16,-519. On April 26, 1993, NMFS indicated that it would be issuing a final rule establishing a minimum approach distance in May of 1993, 58 Fed.Reg. 24,152, 24,155, but no such rule has yet issued. The Commonwealth of Massachusetts, however, has established a 500 yard “buffer zone” for Northern Right whales within Massachusetts waters. 322 C.M.R. § 12.00- § 12.05 (1993). On December 27,1994, NMFS issued an advance notice of proposed milemaking to solicit public comment on a petition by GreenWorld to establish a 500 yard “protection zone” around every Right whale and a 100 yard “protection zone” around other whales.
North Atlantic Right Whale Protection,
59 Fed.Reg. 66,513, 66,514 (1994).
On June 3,1994, NMFS designated a critical habitat for the Northern Right whale in portions of the Cape Cod Bay, the Stellwagen Bank, the Great South Channel, and in the Southeast United States.
See
59 Fed. Reg. 28,793 , 28,797-28,798 (1994). Designation of a critical habitat “provides notice to Federal agencies and the public that a listed species is dependent on these areas and its features for its continued existence____”
Id.
at 28,793.
B.
The Coast Guard and Its Mission
The Coast Guard, which operates under the Department of Transportation, (Defs. Mem. Opp. Prelim. Injunc. at 2-3), conducts extensive marine operations, such as rescues at sea; navigation assistance; drug enforcement; and immigration enforcement. (Riutta Decl. at ¶ 5.) It also documents and inspects numerous vessels, which cannot legally operate within 200 miles of the U.S. coastline without a certificate from the Coast Guard (or from the state government). (Amended Answer ¶42.) The Coast Guard has issued Certificates of Documentation and Inspection to at least two whale watching vessels — the New England Aquarium’s “Voyager II” and the Bay State Cruise Company’s “Commonwealth” — with knowledge that the vessels were engaged in whale watching. (Amended Answer at ¶¶ 49, 50, and 51.)
C.
The Coast Guard’s Response
There have been two documented deaths of Northern Right whales due to collisions with Coast Guard vessels. One occurred in 1991 and the other occurred in 1993. (Defs.
*612
Mem. Opp. Prelim. Injunc. at 3). On July 6, 1991, the Coast Guard Cutter “Chase,” traveling at 20-22 knots, (Complaint ¶ 38; Amended Ans. ¶ 38), struck and killed a Right whale off the Virginia Cape, southeast of the Delaware coast. On January 5, 1993, the Cutter “Point Francis,” which allegedly was traveling at full speed, (Complaint ¶ 39), struck and mortally injured a juvenile Right whale, which was found on shore a few days later and examined by the U.S. Fish and Wildlife Service. (Defs. Mem. Opp. Prelim. Inj. at 3; Amended Ans. ¶ 39.)
The Coast Guard states that it “does not have the capability to determine the presence of protected marine species from operating vessels other than by physical observation,” and that Coast Guard cutters “have full-time (24-hour) lookouts who are instructed to warn the vessel’s operators about the presence of whales.” (Riutta Decl. ¶ 7.)
The Coast Guard has not obtained an ESA “incidental take” permit or statement allowing the agency, incidentally but not purposefully, to kill or otherwise “take” any endangered species of whales as a result of its vessel operations. (Complaint ¶ 92; Amended Ans. ¶ 92.) The Coast Guard also has not obtained an MMPA “small take” permit allowing it to injure or kill small numbers of whales incidentally to its vessel operations. (Complaint ¶ 96; Amended Ans. ¶ 96.) The Coast Guard reports that “NMFS has indicated that it likely could not issue an MMPA Section 101(a)(5) permit that authorizes any amount of incidental vessel strikes on Northern Right whales. The depleted nature of Northern Right Whale stocks would likely prevent NMFS from making the necessary finding that such takes would have ‘a negligible impact upon such species.’ 16 U.S.C. § 1371 (a)(5)(A)(i).” (Def. Statement Regarding Compliance with the Marine Mammal Protection Act at 2-3). The Coast Guard does not keep records regarding deaths of marine mammals in general. (Defs. Mem. Opp. Prelim. Inj. at 3.)
This Complaint was filed on June 7, 1994. In response, the Coast Guard formed the Endangered Species Act Compliance Team (ESACT) and the Endangered Species Act Biological Assessment Team (ESABAT). (Defs. Mem. Opp. Prelim. Injunc., Riutta Decl. ¶3; Marquardt Decl. ¶ 1.) ESABAT is responsible for preparing the Biological Assessment required for formal consultation with NMFS. (Marquardt Decl. ¶ 1.) ESA-BAT also expects to prepare “[a]n appropriate environmental analysis... pursuant to the National Environmental Policy Act ... to analyze the impacts of Coast Guard operations and the alternatives to eliminate or lessen those impacts.” (Marquardt Decl. ¶ 3.)
In accordance with a proposal by ESA-BAT, the Coast Guard has begun broadcasting and publishing a notice to mariners during the calving season of the Northern Right whale (December through March). (Marquardt Decl. at 3-4; Def. Mem. Opp. Prelim. Injunc. Ex. 3; 59 Fed.Reg. at 28799.) The notice warns mariners to post extra watches during daylight hours, reduce speeds to 5 knots at night and during poor visibility, maintain a distance of 500 meters from any whales sighted, and report any sightings to the Coast Guard.
Id.
The Coast Guard also has a representative (Marquardt) on the Southeastern U.S. Implementation Team for the Recovery of the Northern Right Whale. (Marquardt Decl. ¶ 5.) The Coast Guard committed to “contribute $80,000 toward aerial monitoring of the northern right whale calving season from December 1, 1994 to March 31, 1995.”
Id.; cf.
59 Fed.Reg. at 28798 (discussing contribution of Navy and Coast Guard to aerial monitoring during calving season in 1993-1994).
In November of 1994, the First Coast Guard District
3
adopted a comprehensive “Marine Mammal and Endangered Species Protection Program” (“Whale Protection Program”). (Def.Mem.Mot.Summ. Judgment, Ex. A.) The Whale Protection Program applies “to littoral and offshore waters” in the First District, with special focus on the Stellwagen Bank National Marine Sanctuary (“SBNMS”) and designated critical habitats.
*613
Id.
at 2. As part of the Whale Protection Program, Coast Guard units “will be routinely tasked to conduct enforcement boardings, disseminate information packets, and make broadcasts to mariners in the vicinity of the SBNMS and other areas of interest.”
Id.
In addition, aerial surveys mil be conducted periodically, patrol efforts will be documented, and safety broadcasts will be continued.
Id.
at 2-3. The Whale Protection Program also establishes guidelines for the operation of Coast Guard vessels. First, “[d]uring the course of normal, non-emergency operations, First District units transiting the SBNMS, northern right whale critical habitat areas, or other areas frequently used by right whales... shall use caution and be alert for whales, using speed proportional to the mission to reduce the possibility of whale strikes.”
Id.
at 3. Second, “[i]f a First District unit sights a whale(s),” that unit shall:
(1) Give whales a wide berth, using speed proportional to the mission to reduce the possibility of whale strikes.
(2) Maintain a lookout to best avoid contact with the whales.
(3) Notify vessels in the vicinity about the location of the whales via VHF radio, and direct those vessels to proceed through the area with caution.
(4) Inform OPCON immediately of any sightings of right whales or any other whale that is entangled, injured or dead. Also notify OPCON of any sightings of pilot whales in the vicinity of Cape Cod.
(5) Secure the area to keep onlookers from interfering with personnel authorized to respond to an injured, dead, entangled or stranded protected species. “Authorized” personnel should possess a federal or state permit.
(6) Complete and forward the sighting report. ...
Id.
at 3-4. The Whale Protection Program also gives “OPCON” (Operations Control) extensive responsibility in protecting whales and establishes a “Whale Sighting Program” to assist NMFS.
Id.
at 4-5. Finally, the Whale Protection Program mandates en-for cement of the MMPA and ESA, and details the manner in which enforcement actions should be carried out.
Id.
at 6-8. The broad definition of “harassment” is thoughtfully explained, and a standard is established for documenting and issuing a violation of the MMPA or ESA.
Id.
at 6-8. In particular, the enforcement section of the Whale Protection Program notes the Right whale buffer zone applicable in Massachusetts waters.
Id.
at 7-8. Although most vessels in violation may be boarded, commercial whale watching boats are not to be boarded.
Id.
at 8. Instead, the Coast Guard unit is to “warn and document suspected violators, and forward completed case package to CCGDONE (ole) for further review. ”
4
Id.
On January 5,1995, the First Coast Guard District entered into a “Memorandum of Agreement” with the Stellwagen Bank National Marine Sanctuary and the National Marine Fisheries Service.
(Def.Mem.Mot.Summ.Judgment, Ex. B.) The Stellwagen Bank National Marine Sanctuary lies between Cape Cod and Cape Ann, Massachusetts.
Id.
at 1. The First Coast Guard District agreed to perform numerous enforcement activities, subject to availability of resources, in cooperation with the Sanctuary and NMFS.
Id.
at 2. For example, the Coast Guard agreed to “[p]rovide targeted and dedicated enforcement patrols in the Sanctuary, especially during the months April through October, when the Sanctuary’s heaviest public use occurs.”
Id.
The Coast Guard requested formal consultation under the ESA with NMFS on July 5, 1994. (Defs.Mem.Opp.Prelim.Injune., Ex. # 2.) On March 31, 1995, the Coast Guard submitted a Biological Assessment, analyzing the effects of vessel operations, including aids-to-navigation activities, search and rescue missions, law enforcement activities, and marine safety and pollution response activities, to NMFS.
(See
Endangered Species Act Biological Assessment for the U.S. Atlantic Coast (Mar. 29, 1995) (“Biological Assessment”) and letter from Captain Creech, USCG, to Dr. Fox, NMFS, dated Mar. 31,
*614
1995.) Submission of the Biological Assessment started the 90-day time period for completion of formal consultation.
See
50 C.F.R. § 402.14 (e). In its Appendix B, the Biological Assessment estimates the impact of each category of Coast Guard operations on the Northern Right whale as “unlikely.” Of particular concern, however, are Coast Guard search and rescue (“SAR”) operations, for which the Biological Assessment states:
The primary danger to whales and turtles from CG SAR operations is collision with vessels while the mammals are on the ocean surface. On the east coast of the US, approximately 42% of SAR cases are handled by Coast Guard boats and cutters, resulting in around 18,500 sorties per year. Of these, over 90% are in coastal regions where water depth is less than 200 meters (the principal habitat and migration zone for whales and turtles). Approximately 77% of these cases are non-emergent in nature, that is, vessels are able to divert from their course or travel at moderate speeds, allowing them to easily avoid sea life. This leaves about 3,800 sorties annually when vessels are operating at high speeds and time is of the essence to save human lives and property. Despite this level of activity, there are no documented collisions between Coast Guard vessels and whales or turtles during SAR operations.
Coast Guard vessels are required to have a designated lookout to assist the conning officer or coxswain in watching for other marine traffic and in avoiding objects (such as whales and turtles) in the water. In addition, standing orders to boat coxswains and conning officers direct them to steer clear of objects in the water. These standard operating procedures significantly decrease the likelihood that a Coast Guard vessel will collide with a whale or turtle during SAR operation.
The Northern Right whale is the species most in danger of biological impact from CG SAR operations. This is due primarily to the whales, habit of feeding and calving at or near the ocean surface. Still, there is actually little potential for biological impact from CG SAR operations.
(Biological Assessment at B-2.)
For the Great South Channel:
There are almost no SAR cases in the area of the Great South Channel. There are approximately 17 cases annually which result in about 26 vessel sorties. In addition, there are about 35 cases annually which require Coast Guard vessels to transit the Great South Channel. This results in a total of about 40 vessel transits of the Great South Channel area during spring feeding and an annual total of about 100 vessel transits. It is highly unlikely that CG SAR operations would have any biological impact on the Northern Right Whale in the Great South Channel area.
Id.
at B-2 to B-3.
For the Cape Code Bay and Massachusetts Bay:
There are approximately 1,900 vessel SAR cases in the Massachusetts Bay & Cape Code Bay area annually. Of these, about 19% are emergent in nature, resulting in approximately 90 vessel sorties over the three month feeding period. This is the area with the highest chance for biological impact from CG SAR operations. Still, the tempo of operations indicates an average of only one sortie per day, making it unlikely that CG SAR operations would have any biological impact on the Northern Right Whale in the Cape Cod Bay and Massachusetts Bay area.
Id.
at B-3.
In light of the Biological Assessment’s assertions that there have been “no documented collisions between Coast Guard vessels and whales” during search and rescue operations, (Biological Assessment at B-2), and that “no collision of a Coast Guard ship or boat with a Right Whale during law enforcement operations has been documented,”
id.
at B-l, it would appear that the two strikes of Northern Right whales by Coast Guard cutters in 1991 and 1993 respectively, which are not mentioned in the Biological Assessment, did not occur during search and rescue or law enforcement operations.
D.
Course of Proceedings
At a scheduling conference for this matter on November 10, 1994, Strahan filed a mo
*615
tion for a temporary restraining order and preliminary injunction: (1) restraining the Coast Guard from allowing any of its vessels to approach or operate within 500 yards of any Northern Right whale or to approach or operate within 100 yards of any Humpback whale, Fin whale, Sei whale, Blue whale, or Minke whale; (2) ordering the Coast Guard to enforce the same minimum approach distance for any other person or vessel; (3) restraining the Coast Guard from operating any vessel in a critical habitat for the Northern Right whale without first monitoring the area for the possible presence of Northern Right whales and then only at the slowest speed that would be safe given sea conditions.
At the scheduling conference, I denied Strahan’s motion for a temporary restraining order and directed that, on November 22, 1994, Strahan be deposed and the defendants provide the logs of two vessels to Strahan.
On December 9, 1994, the defendants filed a motion for sanctions, stating that Strahan had failed to appear for his scheduled deposition. The defendants stated that Strahan called them the day before the scheduled deposition and informed them that he would not attend the deposition unless the Coast Guard produced “all Section 7 material” and told him the questions they would be asking. (Defs. Mem. Sanctions at 3.) Defense counsel traveled from Washington, D.C. to Boston to take Strahan’s deposition on November 22, 1994. Strahan called again and repeated his demands, stating that the deposition was a “quid pro quo” for the production of documents. (Defs. Mem. Sanctions at 4.) He offered to attend the deposition for $50.00.
Id.
The defendants refused the offer. Strahan did not attend the deposition nor did he inspect or copy the vessel logs that were made available.
Id.
Strahan also did not inspect the NMFS documents that were produced in response to his subpoena. (Defs.Mot.Sanetions, Ex. 2.) The defendants requested payment of expenses and attorneys’ fees, in the amount of $2,000. Strahan filed an amended motion for a preliminary injunction on December 13,1994.
At the hearing on December 13, 1994, I declined to address Strahan’s motion for a preliminary injunction because Strahan had not been deposed. Based upon Strahan’s assertion that he was indigent, I denied the defendants’ motion for sanctions at that time, but informed Strahan that the case would be dismissed if he did not attend the next deposition, which was scheduled by consent of the parties for the week of January 9, 1995. I also ordered that the defendants produce certain nonprivileged relevant documents for Strahan, and file an index of the documents produced with the Court. The defendants have complied with this order.
Strahan was deposed on January 9, 1995. On January 24, 1995, the defendants filed their Motion for Summary Judgment. Strahan filed his response on February 3, 1995, but neglected to attach all the exhibits. A procedural order was issued on February 6, 1995, directing that Strahan file the missing exhibits by February 9, 1995. A hearing on the motion for preliminary injunction was held on February 10, 1995. This Memorandum incorporates my findings and conclusions regarding the defendants’ motion for summary judgment and Strahan’s motion for a preliminary injunction.
III.
Jurisdiction and Standing
Strahan’s claims are grounded in the Endangered Species Act (“ESA”), the Administrative Procedure Act (“APA”), and the Declaratory Judgment Act. The ESA expressly authorizes citizen suits in federal district court, 16 U.S.C. § 1540 (c) (1988 & Supp. V). Section 1540(g)(1) provides that, with certain exceptions:
any person may commence a civil suit on his own behalf — (A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or (B) to compel the Secretary to apply ... the prohibitions. . .with respect to the taking of any resident endangered species or threatened species within any state;____
16 U.S.C. § 1540 (g)(1) (1988 & Supp. V).
While there is no citizen suit provision under the MMPA, WCA, or NEPA, Stra
*616
han’s claims under those statutes proceed under the Administrative Procedure Act, 5 U.S.C. § 702 . The APA permits a reviewing court to:
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
5 U.S.C. § 706 (1988 & Supp. V).
Strahan’s request for declaratory relief is authorized under the Declaratory Judgment Act, 28 U.S.C. § 2201 , which provides:
In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
Although the Declaratory Judgment Act is not an independent basis of jurisdiction, it makes available an additional remedy where the court already has jurisdiction,
Greene v. Costle,
577 F.Supp. 1225 (W.D.Tenn.1983). As the language of the Declaratory Judgment Act makes clear, the key requirement is that an “actual controversy” exist. In this case, an actual controversy exists between the Coast Guard and Strahan as to whether the Coast Guard has violated the ESA, MMPA, WCA, and NEPA. Thus, Strahan has a statutory basis for the relief he seeks. Before reaching the merits of the case, however, I must address the question whether Strahan has standing to seek this relief.
Federal jurisdiction under Article III of the United States Constitution is limited to “Cases” and “Controversies.” As the Supreme Court explained in
Lujan v. Defenders of Wildlife,
there are three elements to the “irreducible constitutional minimum” of standing:
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical].]” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
504 U.S. 555, 561 , 112 S.Ct. 2130, 2136 , 119 L.Ed.2d 351 (1992) (citations omitted) (alterations in original);
see also Libertad v. Welch,
53 F.3d 428, 435-36 (1st Cir.1995). The Supreme Court added that, in order to be “particularized,” the injury “must affect the plaintiff in a personal and individual way.” 504 U.S. at 561 n. 1, 112 S.Ct. at 2136 n. 1.
A plaintiff who has brought suit in federal court has the burden of establishing these elements.
Id.
at 560-61 , 112 S.Ct. at 2136 . To defeat a summary judgment motion, the plaintiff must provide, by affidavit or other documentary evidence, Fed.R.Civ.P. 56(e), sufficient facts, which will be taken as true, 504 U.S. at 561-63 , 112 S.Ct. at 2137 , to indicate that there is a “genuine issue of material fact,” Fed.R.Civ.P. 56(e), concerning standing, 504 U.S. at 590 , 112 S.Ct. at 2152 (Blaekmun, J., dissenting).
Strahan cannot bring suit “on behalf of’ the whales because the whales, although allegedly directly injured by the Coast Guard’s action (and inaction), are animals and therefore lack standing to sue.
See Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium,
836 F.Supp. 45, 49-50 (D.Mass.1993).
But see Palila v. Hawaii Dep’t of Land and Natural Resources,
852 F.2d 1106, 1107 (9th Cir.1988) (“As an endangered species under the [ESA],
*617
the bird [Palila] (Loxioides bailleui), a member of the Hawaiian honeyereeper family, also has legal status and wings its way into federal court as a plaintiff in its own right.”);
American Bald Eagle v. Bhatti,
9 F.3d 163 (1st Cir.1993) (apparently allowing animal to be named as plaintiff and reaching the merits without addressing the standing question) (decided one month after
New England
Aquarium). As a result, the burden on the plaintiff is heavier because the “plaintiffs asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else____”
Defenders of Wildlife,
504 U.S. at 562 , 112 S.Ct. at 2137 .
Strahan cannot bring suit solely because he has a sincere and passionate interest in the well-being of the whales.
See United States v. AVX Corp.,
962 F.2d 108, 114 (1st Cir.1992);
Defenders of Wildlife,
at 597 n. 3. 112 S.Ct. at 2140 n. 3. Strahan must show not only that the named whales are harmed by the Coast Guard’s actions, but also that he will thereby be “directly affected” by the harm to the whales, apart from his alleged (Complaint ¶ 12) special interest as a dedicated advocate for endangered species and as a religious supporter of biological diversity.
See Defenders of Wildlife,
504 U.S. at 563-64 , 112 S.Ct. at 2138 .
Upon the record before me, I find, and defendants concede, that Strahan has standing to sue with respect to Coast Guard activities in the waters of the First District. Strahan has stated that he engages in personal observation of whales, from the coast and, “as many as four to five times” per year, from whale watch boats. (Strahan Depos. at 39-40.)
See Japan Whaling Ass’n v. American Cetacean Society,
478 U.S. 221 , 230 n. 4, 106 S.Ct. 2860 , 2866 n. 4, 92 L.Ed.2d 166 (1986) (respondents “undoubtedly have alleged a sufficient ‘injury in fact’ in that the whale watching and studying of their members will be adversely affected by continued whale harvesting, and this type of injury is within the ‘zone of interests’ protected by the Pelly and Packwood Amendments [to the fishery acts]”);
Defenders of Wildlife,
504 U.S. at 561-63 , 112 S.Ct. at 2137 (“[o]f course, the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for the purpose of standing”). Strahan also states, in his affidavit (and in his deposition, at 47), that he is “organizing an extensive infield research effort to do field research on whales with [his] own dedicated vessel.” (Strahan Aff. at 3.) In his deposition, Strahan also provides sufficient details regarding the frequency and location of his “enjoyment” of the whales.
See Animal Legal Defense Fund, Inc., v. Espy,
23 F.3d 496, 499-501 (D.C.Cir.1994);
cf. AVX Corp.,
962 F.2d at 116-18 .
Strahan has specified the manner in which Coast Guard operations in the First District may directly impair his enjoyment, i.e., by decreasing the number of whales he may observe by interfering with the breeding and foraging of the whales, as well as by directly injuring or killing whales through accidental collisions.
Finally, for standing purposes, it is likely that the harm to the whales allegedly caused by Coast Guard activities would decrease if Strahan’s request for an injunction were granted.
Strahan does not, however, have standing to sue with respect to Coast Guard activities in other regions of the United States because he has only vague plans “some day” to observe whales there, (Strahan Depos. at 37). Strahan went whale watching in California and in Georgia only once, in the late 1980’s or early 1990’s.
Id.
at 40-41. He states in his Deposition that he plans “to go out on the West Coast and whale watch, maybe, this year. In fact, more than a maybe.”
Id.
at 37. In his Affidavit, Strahan states: “I want to make it clear, that I absolutely will visit the Pacific Coast this coming spring and also in 1996 and 1997 to do research on whales and to “whale watch’ them.” (Strahan Aff. at 3.) These statements by Strahan, which lack any support such as specific dates or funding sources, are insufficient to confer standing to challenge Coast Guard activities off the Pacific Coast.
See Defenders of Wildlife,
504 U.S. at 563-64 , 112 S.Ct. at 2138 . In this case, I will not credit Strahan’s “purely conclusory allegations,”
Nat’l Amusements, Inc. v. Town of Dedham,
43 F.3d 731, 735 (1st Cir.1995) (citations omitted), regarding his
*618
plans to observe whales on the Pacific Coast. I am satisfied that Strahan
hopes
to go to the Pacific, but I am unpersuaded that he has definite and concrete prospects for doing so. His passionate interest in the Pacific whale, expressed at such a great distance, is insufficient to confer standing under Article III. As the Supreme Court explained in
Lujan:
It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible— though it goes to the outer limits of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist. It goes beyond the limit, however, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.
Id.
at 565-68, 112 S.Ct. at 2139 -40 (citing
Japan Whaling Ass’n)
(footnote omitted).
Thus, I find that Strahan has standing under Article III to bring this action with respect to Coast Guard activities in the First District only. I therefore turn to the merits of the defendants’ motion for summary judgment and Strahan’s motion for a preliminary injunction. I will address the summary judgment motion first because, if Strahan’s Complaint cannot survive a motion for summary judgment, his motion for a preliminary injunction is effectively denied.
IV.
Coast Guard’s Motion for Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment must be granted “where the pleadings, depositions, answers or interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Goldman v. First Nat’l Bank of Boston,
985 F.2d 1113, 1116 (1st Cir.1993) (citing Fed. R.Civ.P. 56(c)). In reviewing such materials, I must view all the facts “in the light most favorable to the non-moving party and indulge all inferences advantageous to that party, provided they arise reasonably from the record.”
Villanueva v. Wellesley College,
930 F.2d 124, 127 (1st Cir.),
cert. denied,
502 U.S. 861 , 112 S.Ct. 181 , 116 L.Ed.2d 143 (1991).
In evaluating a summary judgment motion, “[ijnitially, the onus falls upon the moving party to aver ‘an absence of evidence to support the nonmoving party’s case.’ ”
LeBlanc v. Great Am. Ins. Co.,
6 F.3d 836, 841 (1st Cir.1993) (citations omitted),
cert. denied,
511 U.S. 1018 , 114 S.Ct. 1398 , 128 L.Ed.2d 72 (1994). Once this has been accomplished, it is then incumbent upon the nonmovant to show that there is in fact a “ ‘genuine issue for trial’ ”.
Id.
(citation omitted). In this effort, merely conjectural or problematic evidence will not suffice; nor will simple recurrence to the claims presented in the pleadings.
See Goldman,
985 F.2d at 1119 . Rather, an issue will be considered trialworthy only if “there is enough competent evidence to enable a finding favorable to the nonmoving party.”
Goldman,
985 F.2d at 1116 . With these considerations in mind, I turn to the merits of Strahan’s claims under each federal act.
A.
Endangered Species Act
The Endangered Species Act is a powerful and substantially unequivocal statute.
See generally
Frederico M. Cheever,
An Introduction to the Prohibition Against Takings in Section 9 of the Endangered Species Act of 1973: Learning to Live with a Powerful Species Preservation Law,
62 U. Colo. L.Rev. 109 (1991); Douglas A. Chadwick & Joel Sartore,
Dead or Alive: The Endangered Species Act,
Nat’l Geographic 2-41 (Mar.1995). The key provisions of the ESA are contained in Sections 7 and 9.
1.
Section 7 of the ESA
Section 7(a)(2) of the ESA requires that:
Each Federal agency shall,
in consultation with
and with the assistance of the Secretary [of Commerce], insure that any action
*619
authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical, unless such agency has been granted an exemption for such action by the [Endangered Species] Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.
16 U.S.C. § 1536 (a)(2) (1988 & Supp. V) (emphasis added).
See also
50 C.F.R. § 402.14 (formal consultation requirements); 50 C.F.R. § 402.12 (biological assessments). Section 7(a)(1) directs that all federal agencies “shall, in consultation and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered and threatened species....” 16 U.S.C. § 1536 (a)(1) (1988 & Supp. V). Strahan claims the Coast Guard has violated Section 7 by: failing to consult with NMFS regarding Coast Guard vessel operations (Count I— § 7(a)(2)); failing to consult with NMFS regarding the issuance of Certificates of Documentation and Inspection (Count II— § 7(a)(2)); and failing to develop a conservation plan (Count III— § 7(a)(1)).
In the seminal ESA case,
Tennessee Valley Authority v. Hill,
437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978), the Supreme Court held that the ESA barred the completion of a dam, on which Congress had already spent millions of dollars, that would have eradicated the endangered snail darter fish or destroyed its critical habitat. The Court explained that “[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act.” 437 U.S. at 173 , 98 S.Ct. at 2291 . “[Examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” 437 U.S. at 174 , 98 S.Ct. at 2292 .
The defendants emphasize the importance of Coast Guard operations, (Defs. Mem. Opp. Prelim. Injunc. at 2-3), but their argument is misplaced. As the Supreme Court explained in
TVA v. Hill:
the legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the “primary missions” of federal agencies.
437 U.S. at 185 , 98 S.Ct. at 2297 . “[T]he plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as ‘incalculable.’ Quite obviously, it would be difficult for a court to balance the loss of a sum certain — even $100 million — against a congressionally declared ‘incalculable’ value, even assuming we had the power to engage in such a weighing process, which we emphatically do not.” 437 U.S. at 187-88 , 98 S.Ct. at 2298 . Finally, “there are no exemptions in the Endangered Species Act for federal agencies, meaning that under the maxim
expressio unius est exclusio alterius,
we must presume that [the narrow ‘hardship’ exemptions in the ESA] were the only ‘hardship cases’ Congress intended to exempt.” 437 U.S. at 188 , 98 S.Ct. at 2298 (citation and footnote omitted).
5
See also Romero-Barcelo v. Brown,
643 F.2d 835, 857-58 (1st Cir.1981),
rev’d on other grounds sub nom., Weinberger v. Romero-Barcelo,
456 U.S. 305 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982).
*620
Although the Coast Guard has started the Section 7 formal consultation process with NMFS concerning its vessel operations, including aids-to-navigation activities, search and rescue missions, law enforcement activities, and marine safety and pollution response activities, (Defs.Mem.Opp.Prelim.Injunc., Ex. 2), I find that summary judgment for the Coast Guard is not warranted as to Counts I and III because, until the consultation process is complete, the Coast Guard is not in full compliance with ESA Sections 7(a)(2) and 7(a)(1).
See Pacific Rivers Council v. Thomas,
873 F.Supp. 365, 370 (D.Idaho 1995) (denying summary judgment to Forest Service because consultation was not complete). In addition, the dilatory tactics of the Coast Guard make continued judicial supervision appropriate.
I conclude, however, that the Coast Guard is not required to
initiate
consultation with respect to the issuance of Certificates of Documentation and Inspection because this is nondiscretionary agency action within the meaning of the ESA. It is true that “action” is defined broadly under the ESA.
6
50 C.F.R. § 402.02 defines “action” covered by Section 7 of the ESA to mean:
all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.
Federal regulations, however, provide that “Section 7 and the requirements of [the ESA regulations] apply to all actions in which there is
discretionary
Federal involvement or control.” 50 C.F.R. § 402.03 (emphasis added).
Research has disclosed only one decision addressing the meaning of the term “discretionary” in 50 C.F.R. § 402.03 . In
Florida Key Deer v. Stickney,
864 F.Supp. 1222, 1239 (S.D.Fla.1994), the court found that the term “pertained to geographical limitations, rather than discretion to administer the federal activity.” In support of this somewhat surprising conclusion, the court offered statements from the legislative history of the ESA and from
TVA v. Hill
that emphasized the sweeping nature of the ESA. 864 F.Supp. at 1238-39 . While interesting, these statements are not determinative of the specific question whether Congress intended the ESA to apply to nondiscretionary, ministerial acts of federal agencies.
The
Florida Key Deer
court also cited a portion of the Preamble to the Section 7 regulations, which states:
Section 402.03 — Applicability This section, which explains the applicability of Section 7, implicitly covers Federal activities within the territorial jurisdiction of the United States and the high seas as a result of the definition of “action” in § 402.02. The explanation for the scope of the term “action” is provided in the discussion under § 402.01 above.
Interagency Cooperation
— Endangered
Species Act of 1973, as Amended, Final Rule,
51 Fed.Reg. 19,937 (1986) (cited in
Florida Key Deer,
864 F.Supp. at 1239 ). Far from supporting the
Florida Key Deer
court’s understanding of the definition of “dis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1467513. Public record. Not legal advice.