Defenders of Wildlife v. Gutierrez

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2008 Decided July 18, 2008

No. 07-5278

DEFENDERS OF WILDLIFE, ET AL.,
APPELLANTS

v.

CARLOS GUTIERREZ, SECRETARY, DEPARTMENT OF
COMMERCE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 05cv02191)

Howard M. Crystal argued the cause for appellants. With
him on the brief was Eric R. Glitzenstein.

Sambhav N. Sankar, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was
Andrew C. Mergen, Attorney.

Before: SENTELLE, Chief Judge, HENDERSON and
RANDOLPH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.
 2

SENTELLE, Chief Judge: This case concerns the North
Atlantic right whale (Eubalaena glacialis) (“right whale”) and
the role of National Marine Fisheries Service (“NMFS”) and the
Coast Guard in the federal government’s efforts to protect the
species from extinction. Appellants, composed of several
environmental groups and one whale researcher, challenged
NMFS’s denial of a petition for emergency rulemaking and the
Coast Guard’s failure to consider the impact of some of its
actions on the right whale. The district court granted summary
judgment to the agencies. We affirm the district court’s grant of
summary judgment to the agencies on the challenge to the
petition denial but reverse its summary judgment order relating
to the Coast Guard’s actions. We remand to the district court for
further proceedings.

I. Background

Right whales are mostly black in color, generally grow up
to 45–55 feet in length, and can weigh up to 70 tons. Proposed
Endangered Status for North Atlantic Right Whales, 71 Fed.
Reg. 77,704, 77,705 (Dec. 27, 2006) (“Proposed Endangered
Status”). Right whales are so named because, historically, they
were considered the “right” (correct) whale to hunt due to their
close proximity to coastlines, their relatively slow speed, the
prized oils they contain, and the large volume of blubber that
gives them a tendency to float when dead. U.S. Army Research
Office, Endangered Species Act Biological Assessment for the
U.S. Atlantic Coast, at 3-2 (Aug. 1, 1995) (“Biological
Assessment”). By the early twentieth century, the right whale
population was so depleted that both the League of Nations (in
1935) and the International Whaling Commission (in 1949)
banned all whaling of them. NMFS, Final Environmental
Impact Statement for Amending the Atlantic Large Whale Take
Reduction Plan: Broad-Based Gear Modifications, Vol. I, at 9-6
& n.2 (Aug. 2007), available at NOAA Fisheries Service: 2007
 3

Final ALWTRP Modifications, http://www.nero.noaa.gov/nero/
hotnews/whalesfr (follow “9.0 Cumulative Effects Analysis”
hyperlink) (last visited June 30, 2008).

Relatively recent population estimates show around 300
remaining right whales. Proposed Endangered Status, 71 Fed.
Reg. at 77,705. The population does not reproduce rapidly;
females are not mature reproductively until they reach the age
of eight and even then reproduce at a rate of one calf every four
years. Biological Assessment, at 3-6 to 3-7. Recent estimates
show a mortality rate of at least four percent per year, which,
combined with the low birth rate and already low population
levels, “mak[e] it one of the most critically endangered large
whale species in the world.” Proposed Rule To Implement
Speed Restrictions To Reduce the Threat of Ship Collisions with
North Atlantic Right Whales, 71 Fed. Reg. 36,299, 36,300 (June
26, 2006) (“Proposed Rule”). Right whales were first listed as
“endangered” under the Endangered Species Conservation Act
of 1969, Pub. L. No. 91-135, 83 Stat. 275, the precursor to the
Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et
seq., which is the Act under which they are now listed. See 50
C.F.R. § 17.11 (listing the North Atlantic right whale as
endangered under the ESA); see also 35 Fed. Reg. 8491, 8495
(June 2, 1970) (listing the right whale as endangered pursuant to
the Endangered Species Conservation Act). Right whales are
also listed as “depleted” under the Marine Mammal Protection
Act of 1972 (“MMPA”), 16 U.S.C. § 1361 et seq. See 38 Fed.
Reg. 20,564, 20,570 (Aug. 1, 1973) (listing the right whale as
“depleted”).

Right whales are migratory mammals. They generally
spend spring, summer, and fall in New England waters near
Massachusetts, Rhode Island, and Maine, but some whales have
been spotted as far north as Greenland. Proposed Endangered
Status, 71 Fed. Reg. at 77,705. Their only known wintering
 4

location is along the southeastern U.S. coastline near Georgia
and Florida, which is where some females go to calve. Id.
National Marine Fisheries Service designated these areas—the
Great South Channel east of Cape Cod, Cape Cod and
Massachusetts Bays, and the southeastern United States off the
coasts of southern Georgia and northern Florida—as right whale
“critical habitat.” 50 C.F.R. § 226.203 (listing right whale
critical habitat); see 16 U.S.C. § 1533(a)(3)(A) (giving the
Secretary of Commerce authority to designate critical habitat);
id. § 1532(5)(A) (defining “critical habitat”).

Some of the areas labeled by NMFS as “critical habitat” for
right whales are dense with shipping traffic. See Right Whale
Ship Strike Reduction Strategy Notice of Intent To Prepare an
Environmental Impact Statement and Conduct Public Scoping,
70 Fed. Reg. 36,121, 36,121 (June 22, 2005) (“Notice of Intent”)
(“Right whales are located in, or adjacent to, several major
shipping corridors on the eastern U.S. and southeastern
Canadian coasts.”); Proposed Rule, 71 Fed. Reg. at 36,306
(describing shipping traffic in the bays and channels near
Boston, Massachusetts). Ship strikes are “the greatest source of
known deaths” of right whales. Proposed Rule, 71 Fed. Reg. at
36,300. They “are responsible for over 50 percent of known
human-related right whale mortalities and are considered one of
the principal causes for the lack of recovery in [the right whale
population].” Notice of Intent, 70 Fed. Reg. at 36,121.

There are two primary agencies whose actions appellants
challenge in this case. The first agency is National Marine
Fisheries Service, which is an arm of the National Oceanic and
Atmospheric Administration, which, in turn, falls within the
Commerce Department. NMFS is one of the agencies to which
the Endangered Species Act and Marine Mammal Protection Act
delegate enforcement. See 16 U.S.C. § 1533(a)(1) and id.
§ 1532(15) (delegating to the Secretary of Commerce, of which
 5

NMFS is part, the duty to identify endangered species); id.
§ 1362(12)(A)(i), (B) (delegating to the Secretary of Commerce,
and the National Oceanic and Atmospheric Administration
within that agency, authority over the Marine Mammal
Protection Act with respect to whales). The second agency is
the United States Coast Guard, a part of the Department of
Homeland Security. The Coast Guard is the main agency
responsible for effectuating the Ports and Waterways Safety Act
of 1972 (“PWSA”), 33 U.S.C. § 1221 et seq., under which it has
the duty to designate vessel routing measures “to provide safe
access routes for the movement of vessel traffic” coming in and
out of ports, id. § 1223(c)(1).

On June 1, 2004, NMFS issued an Advance Notice of
Proposed Rulemaking requesting comments on proposed
regulations that aim to reduce the likelihood of right whale ship
strike mortalities. Advance Notice of Proposed Rulemaking
(ANPR) for Right Whale Ship Strike Reduction, 69 Fed. Reg.
30,857 (June 1, 2004) (“ANPR”). The agency noted that despite
its efforts to notify mariners of right whale sightings and ship
strikes, impose mandatory ship reporting systems, collaborate
with the Coast Guard, and take other measures, “right whales
continue to be killed as a result of collisions with vessels.” Id.
at 30,858. Because of these failings, the agency recognized
“that this complex problem requires additional, more pro-active
measures to reduce or eliminate the threat of ship strikes to right
whales.” Id. Without additional measures, the agency noted
that “[r]ecent modeling exercises suggest that if current trends
continue, the population could go extinct in less than 200 years”
and that “the loss of even a single individual may contribute to
the extinction of the species . . . .” Id. It further noted that
“according to the models, preventing the mortality of one adult
female a year alters the projected outcome.” Id. The agency
proposed, inter alia, to impose speed limits on vessels 65 feet
and longer traveling in areas when right whales are present in
 6

significant numbers, and invited comments on its proposal. Id.
at 30,858, 30,861.

On May 19, 2005, Defenders of Wildlife, The Humane
Society of the United States, Ocean Conservancy, and others
submitted a petition for emergency rulemaking to NMFS
pursuant to 5 U.S.C. § 553(e). Petition for Initiation of
Emergency Rulemaking To Prevent the Extinction of the North
Atlantic Right Whale to the Secretary of Commerce, the
Administrator of the National Oceanic and Atmospheric
Administration, and the Assistant Administrator for Fisheries at
NMFS (May 19, 2005) (“Emergency Rulemaking Petition”); see
5 U.S.C. § 553(e) (requiring agencies to “give an interested
person the right to petition for the issuance, amendment, or
repeal of a rule”). The petition, among other things, requested
“emergency regulations [that] require all ships entering and
leaving all major East Coast ports to travel at speeds of 12 knots
or less within 25 nautical miles of port entrances during
expected right whale high use periods.” Emergency
Rulemaking Petition, at 3–4. Just over six months after the
petitioners requested an emergency rule, NMFS published its
denial. Petition To Initiate Emergency Rulemaking To Prevent
the Extinction of the North Atlantic Right Whale; Final
Determination, 70 Fed. Reg. 56,884 (Sept. 29, 2005) (“Denial of
Emergency Rulemaking Petition”).

At the same time the petitioners were pursuing an
emergency rulemaking petition with NMFS, Defenders of
Wildlife, The Humane Society of the United States, Ocean
Conservancy, and Regina Asmutis-Silvia (together,
“appellants”) were challenging the Coast Guard about a series
of purported omissions regarding its duties under the
Endangered Species Act. On November 3, 2005, appellants sent
a 60-day notice letter to the Coast Guard pursuant to the citizen-
suit provision in the ESA, 16 U.S.C. § 1540(g), notifying the
 7

agency that it was violating ESA section 7(a)(2), 16 U.S.C.
§ 1536(a)(2), by failing to consult with NMFS about the impact
its regulation of commercial shipping has on right whales, “and
therefore failing to insure that this vessel traffic is not likely to
jeopardize the continued existence of the species” and its
habitat. Am. Compl. ¶¶ 71, 72. The letter also maintained that
the Coast Guard was violating its ESA section 7(a)(1), 16 U.S.C.
§ 1536(a)(1), obligation “to carry out programs for the
conservation of the right whale.” Am. Compl. ¶ 73. Appellants
noted that the Coast Guard has authority to control vessel
movement pursuant to 33 U.S.C. § 1223 and to take into account
“environmental factors” while doing so, id. § 1224(a)(6). They
requested that the Coast Guard use this authority to protect the
right whale. Am. Compl. ¶ 73. They also argued that the
agency was violating ESA section 9, 16 U.S.C. § 1538, by
establishing and maintaining vessel shipping lanes in areas
inhabited by right whales, effectuating the “take” of the marine
mammals. Am. Compl. ¶ 74. The record contains no response
to the notice letter. See id. at ¶ 75.

On November 9, 2005, appellants filed this action against
Secretary of Commerce Carlos Gutierrez, then-Assistant
Administrator for NMFS William T. Hogarth, Secretary of
Homeland Security Michael Chertoff, and then-Commandant of
the U.S. Coast Guard Admiral Thomas H. Collins (together,
“appellees”).

Appellants’ first claim was directed against NMFS,
contending that its denial of the emergency rulemaking petition
was “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). Appellants
contend that the agency violated ESA section 7(a)(1), 16 U.S.C.
§ 1536(a)(1), which requires the agency to utilize its authority
to further the purposes of the ESA by carrying out programs to
conserve the right whale, and section 1382(a) of the Marine
 8

Mammal Protection Act, 16 U.S.C. § 1382. Am. Compl. ¶ 77.
They asked the court to declare that NMFS violated the ESA and
the Administrative Procedure Act, to vacate and remand the
denial of their Emergency Rulemaking Petition, and, if the
agency should grant the emergency petition on remand, to enjoin
the agency to issue emergency regulations within 60 days. Id.
at ¶ 82(1)–(3).

Appellants’ second claim was primarily directed against the
Coast Guard, contending that it had violated and was continuing
to violate ESA sections 7(a)(1), 7(a)(2), and 9, 16 U.S.C.
§§ 1536(a)(1), (2), 1538, with respect to right whales, and
requesting that the court direct compliance with those
provisions. Am. Compl. ¶¶ 79–81, 82(4)–(7). Specifically, they
asked the district court to enjoin the Coast Guard to consult with
NMFS within 90 days about the impact of commercial shipping
on right whales and to direct that NMFS issue a biological
opinion within 45 days of the consultation. Id. at ¶ 82(5).

On June 2, 2006, appellants moved for summary judgment,
and on June 25, 2006, NMFS published its highly anticipated
proposed ship strike rule. Proposed Rule, 71 Fed. Reg. 36,299.
Approximately three weeks later, appellees filed a cross motion
for summary judgment. On October 25, 2006, noting that
NMFS had published its proposed ship strike rule, the district
court ordered counsel for NMFS to “inform the Court within 10
days of the date of this Order when the final rule will issue.”
Defenders of Wildlife, No. 05-2191 (D.D.C. Oct. 25, 2006)
(order). On November 13, 2006, appellees responded,
explaining that NMFS must

respond to over 10,000 public comments received on its
proposed rule, consult with other Federal agencies
affected by this rule, consult with itself for purposes of
Section 7 of the ESA, finish a final environmental
 9

impact statement and record of decision, and wait 30
days prior to implementation of the proposed ship strike
measures . . . .

Defendants’ Response to the Court’s October 25, 2006 Order at
1–2, Defenders of Wildlife, No. 05-2191 (D.D.C. Nov. 9, 2006).
The agency estimated that it would “tak[e] final action on the
proposed rule in June 2007.” Id. at 2. In a hearing held on
March 16, 2007, counsel stated to the district court that “the
draft final rule has cleared the Department of Commerce and is
currently with the Office of Management and Budget for review
. . . .” Transcript of Hearing at 37, Defenders of Wildlife, No.
05-2191 (D.D.C. Mar. 16, 2007). Counsel also stated that the
Office of Management and Budget received the draft final rule
on February 20, 2007, and that pursuant to Exec. Order No.
12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993), that office has 90
days to review the rule and return it to NMFS. Transcript of
Hearing at 37.

On April 5, 2007, the district court granted appellees’ cross
motion for summary judgment and denied that of appellants.
Defenders of Wildlife v. Gutierrez, 484 F. Supp. 2d 44 (D.D.C.
2007). The district court rejected appellants’ challenge to the
agency’s denial of the rulemaking petition, explaining that

[w]hile NMFS’ explanation may have been lacking in
detail, and may not represent the policy choices that the
plaintiffs might make, the Court cannot conclude that
NMFS “relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before
the agency or [was] so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.”
 10

Id. at 54 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The district court also
held that appellants failed to identify any “final agency action[]
of the Coast Guard reviewable by the Court.” Id. at 55.
Because judicial review requires agency action, the district court
granted appellees’ motion for summary judgment on this issue
as well. Id. at 56.

On April 10, 2007, appellants filed a motion for
reconsideration in the district court, arguing primarily that the
district court did not have a complete administrative record on
which to base its decision. Plaintiffs’ Motion for
Reconsideration of the Court’s March 30, 2007 Order and April
5, 2007 Opinion, No. 05-2191 (Apr. 10, 2007). The district
court denied their motion on June 29, 2007. Order, No. 05-2191
(June 29, 2007). On August 16, 2007, appellants filed a notice
of appeal from both the summary judgment order and the denial
of their motion for reconsideration. Notice of Appeal, No. 05-
2191 (Aug. 16, 2007).

II. Analysis

As with all summary judgment dispositions, we review the
district court’s denial of appellants’ motion for summary
judgment and grant of appellees’ cross motion for the same de
novo. See Flynn v. Dick Corp., 481 F.3d 824, 828 (D.C. Cir.
2007). We also apply the same standard of review applicable to
the underlying claims in the district court. Id. at 828–29.

We review National Marine Fisheries Service’s denial of
the emergency rulemaking petition under the standards set forth
in the Administrative Procedure Act; therefore, we must “hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law . . . .” 5 U.S.C.
 11

§ 706(2)(A); see Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 4
(D.C. Cir. 1987) (holding that the appropriate standard to apply
to a challenge to an agency decision on a rulemaking petition is
“arbitrary and capricious” review). The district court’s
determination that it lacked jurisdiction to hear the challenges
against the Coast Guard is a question of law, which we review
de novo. See Munsell v. Dep’t of Agric., 509 F.3d 572, 578
(D.C. Cir. 2007). Finally, we review the district court’s denial
of appellants’ motion for reconsideration for abuse of discretion.
Flynn, 481 F.3d at 829.

A. Emergency Rulemaking Petition

Defenders of Wildlife, The Humane Society of the United
States, Ocean Conservancy, and Regina Asmutis-Silvia now
appeal the district court’s denial of their challenge to NMFS’s
denial of the petition for emergency rulemaking on the ship
strike issue. Appellants claim that the district court failed to
recognize that NMFS’s September 2005 denial of the emergency
petition was arbitrary and capricious in light of the admitted
need for ship speed regulations and the agency’s ESA section
7(a)(1) duty to protect right whales through its programming.
We affirm the district court’s grant of summary judgment on the
challenge to the agency’s denial of the petition.

We begin by noting that “an agency’s refusal to institute
rulemaking proceedings is at the high end of the range” of levels
of deference we give to agency action under our “arbitrary and
capricious” review. Am. Horse Prot. Ass’n, 812 F.2d at 4–5.
Where, as here, “the proposed rule pertains to a matter of policy
within the agency’s expertise and discretion, the scope of review
should ‘perforce be a narrow one, limited to ensuring that the
Commission has adequately explained the facts and policy
concerns it relied on and to satisfy ourselves that those facts
have some basis in the record.’” WWHT, Inc. v. FCC, 656 F.2d
 12

807, 817 (D.C. Cir. 1981) (quoting Natural Res. Def. Council,
Inc. v. SEC, 606 F.2d 1031, 1053 (D.C. Cir. 1979)). In other
words, we look to see whether the agency employed reasoned
decisionmaking in rejecting the petition. See Am. Horse Prot.
Ass’n, 812 F.2d at 5 (quoting Prof’l Drivers Council v. Bureau
of Motor Carrier Safety, 706 F.2d 1216, 1220 (D.C. Cir. 1983)).

In analyzing appellants’ arguments, we would like to clarify
the record on review. We recognize that certain events occurred
after the agency’s September 2005 denial of the emergency
rulemaking petition that may cast doubt on the reasoning put
forward in that denial. Most significant among these subsequent
events (or omissions) is that—despite the issuance of a proposed
ship strike rule in June 2006 (after appellants moved for
summary judgment in this case), and the agency’s assurance to
the district court that it expected to issue a final rule in June
2007—in June 2008, no final rule has been issued. Nonetheless,
we cannot take judicial notice of three years of events
concerning the right whale ship strike rule about which no one,
most crucially not the agency, had knowledge at the time it
denied the emergency rulemaking petition in September 2005.
We are bound on review to the record that was before the
agency at the time it made its decision. “[W]here the agency
decides not to proceed with rulemaking, the ‘record’ for
purposes of review need only include the petition for
rulemaking, comments pro and con where deemed appropriate,
and the agency’s explanation of its decision to reject the
petition.” WWHT, 656 F.2d at 817–18.

We are aware that we once considered testimony made
before a congressional committee that was not available to the
agency at the time of the action under review. See Amoco Oil
Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974). However, this
exception was made with the understanding that “[a] reviewing
court must tread cautiously in considering events occurring
 13

subsequent to promulgation of a rule.” Id. at 729 n.10. We
acknowledged in Amoco Oil that events occurring after an
agency action do “not inform the agency decision-making which
is the subject of review.” Id. This reasoning remains true today.
The exception made in Amoco Oil was quite narrow, applying
to testimony by discrete individuals during a narrow window of
time, and we decline to extend it to the three years of events that
occurred after the agency’s decision in this case.

Thus, in considering the agency’s denial of the rulemaking
petition, we “must examine ‘the petition for rulemaking,
comments pro and con . . . and the agency’s explanation of its
decision to reject the petition.” Am. Horse Prot. Ass’n., 812
F.2d at 5 (quoting WWHT, 656 F.2d at 817–18). The petition
under review noted that since the start of 2004, the year in which
NMFS published its ANPR on right whale ship strikes, eight
right whales had died, four from ship strikes, and that five of
those killed were adult females—“at least three of which were
pregnant at the time they were killed.” Emergency Rulemaking
Petition, at 2. Quoting NMFS’s statement that “‘the loss of even
one northern right whale . . . may reduce appreciably the
likelihood of both survival and recovery of this species . . . [,]’”
the petitioners requested “emergency regulations [that] require
all ships entering and leaving all major East Coast ports to travel
at speeds of 12 knots or less within 25 nautical miles of port
entrances during expected right whale high use periods.” Id. at
2–4. The petition also requested that NMFS “institute dynamic
management areas to protect whales outside of the times and
areas” specified by the petitioners. Id. at 4.

The agency denied the petition. Denial of Emergency
Rulemaking Petition, 70 Fed. Reg. 56,884. The published denial
noted that it was continuing its current efforts to reduce ship
strikes on right whales, had held a series of public meetings on
the advance notice for its proposed rule to impose vessel speed
 14

restrictions in right whale-inhabited waters, and was undergoing
a draft environmental impact statement on that rule. Id. at
56,885; see Notice of Intent, 70 Fed. Reg. at 36,121 (stating
intent to prepare environmental impact statement). The
agency’s denial stated that

[p]romulgating a separate 12-knot speed limit, at this
time, would curtail full public notice, comment and
environmental analysis, duplicate agency efforts and
reduce agency resources for a more comprehensive
strategy, as well as risk delaying implementation of the
draft Strategy. Instead of imposing measures in
piecemeal fashion, NMFS continues to believe that
putting a comprehensive Strategy in place is the best
course of long-term action.

Denial of Emergency Rulemaking Petition, 70 Fed. Reg. at
56,885. NMFS further stated that it would “implement specific
regulatory measures of the comprehensive ship strike reduction
strategy in the coming months.” Id.

A separate letter to petitioners dated September 14, 2005,
stated an additional reason for the agency’s denial: petitioners
did “not present any new information about right whales that
warrants promulgating a rule on an emergency basis rather than
completing the ongoing rulemaking.” Letter from William T.
Hogarth, Assistant Administrator, NMFS, to Jonathan R.
Lovvorn, Vice President, The Humane Society of the United
States, at 2 (Sept. 14, 2005). NMFS also stated that it expected
to issue a draft environmental impact statement and proposed
regulations “by the end of the year or early in 2006” and would
“continue . . . to proceed as quickly as possible with analysis and
rulemaking to implement the comprehensive ship strike
strategy.” Id. at 1, 2.
 15

Although “[i]t is only in the rarest and most compelling of
circumstances that this court has acted to overturn an agency
judgment not to institute rulemaking,” WWHT, 656 F.2d at 818,
such circumstances do arise. In Geller v. FCC, 610 F.2d 973
(D.C. Cir. 1979), we reversed an agency’s refusal to initiate
rulemaking proceedings because an “agency cannot sidestep a
reexamination of particular regulations when abnormal
circumstances make that choice imperative.” Id. at 979. We did
so again in American Horse Protection Association, when the
agency did not “present[] a reasonable explanation of [its]
failure to grant the rulemaking petition,” particularly in light of
new evidence, and the agency’s denial “strongly suggest[ed] that
[it] ha[d] been blind to the nature of [its] mandate from
Congress.” 812 F.2d at 7.

However, this case presents no “abnormal circumstances”
like those found in Geller when a newly enacted law removed
the sole basis for the regulations at issue, but the agency refused
to either terminate the regulations or show that they continued
to have a basis in law. See 610 F.2d at 979–80. And unlike
American Horse Protection Association, petitioners failed to
present new evidence “strongly” suggesting that the agency was
unaware of its congressional mandate to protect the right whales.
See 812 F.2d at 7. To the contrary, NMFS was well aware of its
mandate to protect right whales and was pursuing it by initiating
a full notice-and-comment rulemaking on speed restrictions that
would potentially be even lower than the ones proposed by
petitioners. ANPR, 69 Fed. Reg. at 30,859 (predicting that
proposed speed restrictions would “be in the range of 10–14
knots”).

The explanations presented in the agency’s denial
represented reasoned decisionmaking. The agency’s prediction
that an emergency rule would detract agency resources from the
promulgation of a final, comprehensive rule is based on facts
 16

found in the record. At the time of the denial of the petition for
emergency rulemaking, NMFS was holding public meetings on
the ANPR and preparing a draft environmental impact statement
on proposed vessel speed restriction measures. Letter from
William T. Hogarth, Assistant Administrator, NMFS, to
Jonathan R. Lovvorn, Vice President, The Humane Society of
the United States, at 1 (Sept. 14, 2005). Petitioners presented no
evidence to rebut the agency’s prediction that an emergency rule
would curtail the public’s notice-and-comment period and
analysis of the rule’s environmental impact. The agency made
a policy decision to focus its resources on a comprehensive
strategy, which in light of the information before the agency at
the time, was reasoned and adequately supported by the record.
We will not disturb it on appeal.

B. Coast Guard Action

Appellants’ second claim is directed against the Coast
Guard and its purported omissions while engaged in the process
by which it promulgates, enforces, and alters vessel routing
measures that coincide with right whale habitat. Appellees first
contend that appellants lack standing to raise this argument, and
second, that the Coast Guard has no more than a ministerial role
in the vessel routing process, giving rise to no duties regarding
right whales. We will address the standing argument first, but
we begin by providing a brief overview of the relevant statutory
provisions.

The Ports and Waterways Safety Act requires the Coast
Guard to “designate necessary fairways and traffic separation
schemes” to provide safe routes for boats traveling in and out of
U.S. ports and other places subject to U.S. jurisdiction. 33
U.S.C. § 1223(c)(1). Traffic separation schemes (“TSSs”) are
similar to the markings on paved roads—they are “aimed at the
separation of opposing streams of traffic . . . by the
 17

establishment of traffic lanes.” 33 C.F.R. § 167.5(b). The Coast
Guard’s construction of “measures for controlling or supervising
vessel traffic” is “[s]ubject to the requirements of section 1224,”
33 U.S.C. § 1223(a)(1); see also id. § 1223(c)(3), which, inter
alia, requires the Coast Guard to “take into account all relevant
factors concerning . . . protection of the marine environment, . . .
including but not limited to . . . environmental factors,” id.
§ 1224(a)(6). Prior to designating a traffic separation scheme,
the Coast Guard must, inter alia, (1) undertake a study, which
the Coast Guard calls a port access route study (“PARS”), and
publish notice of it in the Federal Register, id. § 1223(c)(3)(A);
(2) “take into account all other uses of the area under
consideration,” in consultation with the Secretary of Commerce
and others, id. § 1223(c)(3)(B); and (3) “to the extent
practicable, reconcile the need for safe access routes with the
needs of all other reasonable uses of the area involved,” id.
§ 1223(c)(3)(C). After completing the above tasks, the Coast
Guard must issue a notice of proposed rulemaking of the
contemplated route, or lack thereof, in the Federal Register, and
state its reasons for the decision. Id. § 1223(4). The Coast
Guard may later adjust the location or limits of these vessel
shipping routes, id. § 1223(5)(C), and may also make them
mandatory, id. § 1223(5)(B).

Since the enactment of the Ports and Waterways Safety Act,
the Coast Guard has established numerous traffic separation
schemes, some of which coincide with right whale habitat. In
recent years, the Coast Guard has undertaken several port access
route studies and modified traffic separation schemes in right
whale-inhabited areas. See, e.g., Port Access Routes:
Approaches to Portland, ME and Casco Bay, 70 Fed. Reg. 7067
(Feb. 10, 2005) (notice of PARS); Port Access Routes Study: In
the Approaches to Chesapeake Bay, VA, 69 Fed. Reg. 3869
(Jan. 27, 2004) (notice of PARS results); Port Access Routes
Study: In the Approaches to Narragansett Bay and Buzzards
 18

Bay, Cleveland Ledge to the Race, Narragansett Bay East
Passage, and the Areas Offshore of Connecticut, Rhode Island,
and Massachusetts, 68 Fed. Reg. 74,199 (Dec. 23, 2003) (notice
of PARS); TSS in the Approaches to Delaware Bay, 65 Fed.
Reg. 12,944 (Mar. 10, 2000). There are at least six traffic
separation schemes at issue in this case—namely, (1) In the
Approaches to the Chesapeake Bay, (2) Off Delaware Bay,
(3) Off New York, (4) In the Approaches to Narragansett Bay,
R.I. and Buzzards Bay, Mass., (5) In the Approach to Boston,
Mass., and (6) In the Approaches to Portland, Maine. See
Defenders of Wildlife v. Gutierrez, 484 F. Supp. 2d 44, 55 n.9
(D.D.C. 2007) (listing the TSSs mentioned in the amended
complaint).

The Endangered Species Act and the Marine Mammal
Protection Act give the Coast Guard duties regarding the right
whale. ESA section 7(a)(1) requires all federal agencies, “in
consultation with and with the assistance of the Secretary, [to]
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). And ESA section 9 prohibits any federal agency
from “tak[ing],” id. § 1538(a)(1)(B), meaning, inter alia,
harassing, harming, wounding, or killing, id. § 1532(19), “any
endangered species of fish or wildlife” “within the United States
or [its] territorial sea . . . [,]” id. § 1538(a)(1)(B); see id.
§ 1332(13) (including federal departments, instrumentalities,
and agents in its definition of “person” for ESA purposes). The
Marine Mammal Protection Act also prohibits the unauthorized
“take” of all marine mammals, id. § 1372(a), and requires the
Secretary of Commerce to “prescribe such regulations as are
necessary and appropriate to carry out the purposes of this
subchapter,” id. § 1382(a).
 19

The statutory provision most relevant to this dispute is ESA
section 7(a)(2), 16 U.S.C. § 1536(a)(2). This provision requires
“[e]ach Federal agency . . . in consultation with and with the
assistance of the Secretary, [to] insure that any action
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 its habitat, unless the agency is granted an
exemption. Id. No party disputes that the Coast Guard did not
consult with NMFS about the potential effect of any of the
above-listed traffic separation schemes on the right whale. They
do argue, however, about the applicability of the ESA to the
Coast Guard’s role in the traffic separation scheme process.
First, however, we address standing. See Allen v. Wright, 468
U.S. 737, 756 (1984) (noting that “[c]onstitutional limits on the
role of the federal courts preclude” us from judging the merits
of a case in which plaintiffs fail to show standing).

1. Standing

Appellees argue that appellants fail to meet two of the three
elements required to establish “the irreducible constitutional
minimum of standing”: causation and redressability. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Appellees
do not contest the first element of our standing inquiry, injury-
in-fact, nor, in light of precedential authority, do we question
appellants’ showing of this element. See Declarations of Regina
Asmutis-Silvia, Sharon Young, Linda Bremer, and John Phillips
(declaring that these individuals engage in whale watching and
the studying of whales, activities that ship strike mortalities
threaten); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.
221, 230 n.4 (1986) (holding that plaintiffs “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”).
 20

The second element of our standing analysis requires “a
causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the
challenged action of the defendant . . . .” Lujan, 504 U.S. at 560
(internal quotation marks and alterations omitted). Appellees
essentially argue that the chain of causation between the Coast
Guard’s actions and collisions between right whales and vessels
is too speculative to provide standing. Appellees contend that
this case is controlled by Florida Audubon Society v. Bentsen,
94 F.3d 658 (D.C. Cir. 1996) (en banc), in which we found that
plaintiffs “premise[d] their claims of particularized injury and
causation on a lengthy chain of conjecture.” Id. at 666. There,
plaintiffs claimed that the challenged tax credit would cause an
increase in the production of a fuel additive derived from
ethanol, which is made from either corn or sugar—items that
would also be grown in greater quantities. Id. Plaintiffs claimed
that an increase in production of corn and sugar would cause
more agricultural pollution, which would likely increase
pollution in wildlife areas bordering farms. Id. Plaintiffs
regularly visited the wildlife areas in question and claimed they
would be harmed by that pollution. Id. This particular chain of
causation failed to meet the second element of the standing
inquiry “both because of the uncertainty of several individual
links and because of the number of speculative links that must
hold for the chain to connect the challenged acts to the asserted
particularized injury.” Id. at 670.

Appellees argue that appellants’ theory of causation
depends upon this type of attenuated chain. They claim that the
Coast Guard’s only arguably discretionary role in promulgating
the traffic separation schemes at issue was to conduct port
access route studies on them, studies they argue do not alone
constitute “final agency action.” They contend the Coast Guard
then performed purely ministerial acts, first by forwarding those
studies to the Shipping Coordinating Committee in the State
 21

Department, and finally after many intermediary
actions—(1) review by the Shipping Coordinating Committee in
the State Department, (2) development of those proposals by
that committee into traffic separation scheme proposals for the
Secretary of State, (3) review of the proposals by the Secretary,
(4) forwarding of the proposals by the Secretary to the
International Maritime Organization, and (5) adoption of the
traffic separation schemes by the International Maritime
Organization—the Coast Guard simply ensured that the vessel
routing measures were codified in the Code of Federal
Regulations. And even after adoption by the International
Maritime Organization, appellees argue, no direct link exists
between traffic separation schemes and right whale ship strikes
because those schemes are voluntary. Appellees assert, in short,
this sequence of events is too attenuated to fulfill the causation
element of standing.

Appellees’ argument assumes that its view on the merits of
the case will prevail. But “in reviewing the standing question,
the court must be careful not to decide the questions on the
merits for or against the plaintiff, and must therefore assume that
on the merits the plaintiffs would be successful in their claims.”
City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)
(citing Warth v. Seldin, 422 U.S. 490, 502 (1975)). In Southern
California Edison Co. v. FERC, 502 F.3d 176 (D.C. Cir. 2007),
we noted that it was “sharply contested whether [the petitioner]
in fact forfeited its right to recover the costs [of a construction
project] if it did not provide an invoice within the twelve-month
period.” Id. at 180. FERC’s contention that the petitioner
forfeited its rights by not providing an invoice during the
twelve-month period in question was the exact reason it
contended the petitioner lacked standing. Id. at 179. Just as in
Southern California Edison Co., appellees’ argument here “‘is
nothing more than an effort to bootstrap standing analysis to
issues that are controverted on the merits.’” Id. at 180 (quoting
 22

Public Citizen v. FTC, 869 F.2d 1541, 1549 (D.C. Cir. 1989)).
Here, the Coast Guard’s actual role in the traffic separation
scheme process is “sharply contested.” Appellants argue that
the Coast Guard plays a much more pronounced and
discretionary role in the promulgation of traffic separation
schemes than appellees suggest. We assume for the purposes of
standing that appellants view on the merits will prevail. See id.
Therefore, we reject this standing argument by appellees.

Appellees also contest redressability. The redressability
element of standing requires that it be “likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Lujan, 504 U.S. at 561 (internal quotation
marks omitted). Appellees base their argument solely upon the
premise that the Coast Guard does not have authority to
recommend changes to traffic separation schemes to protect
endangered and threatened species, such as the right whale, from
ship strikes. Again, appellants disagree with this premise, and
as a disputed proposition, we assume for the purposes of
standing that appellants’ view will prevail.

Appellants stress that the Coast Guard’s duty under 33
U.S.C. § 1223(c)(1) to designate traffic separation schemes is
subject to its duties under id. § 1224(a) to “take into account all
relevant factors concerning . . . protection of the marine
environment, . . . including but not limited to . . . environmental
factors.” See id. § 1223(a)(1) (applying the requirements of 33
U.S.C. § 1224 to the “construct[ion], maintain[ance],
improve[ment], or expan[sion of] vessel traffic services,” which
includes “routing systems[] and fairways”); id. § 1223(c)(3)
(specifically applying 33 U.S.C. § 1224 to the designation of
traffic separation schemes). They also note that Congress
reinforced the agency’s authority to take into account the effects
of vessel routing measures on right whales in the Coast Guard
and Maritime Transportation Act of 2004, Pub. L. No. 108-293,
 23

118 Stat. 1028, when it directed the agency to “cooperate with
the Administrator of the National Oceanic and Atmospheric
Administration in analyzing potential vessel routing measures
for reducing strikes of North Atlantic Right Whales . . . .” 118
Stat. 1065–66. Assuming appellants’ view on the merits will
prevail, the Coast Guard has authority to take into account right
whales when promulgating traffic separation schemes; thus, an
order from the district court could redress appellants’ injury, at
least in part. See Meese v. Keene, 481 U.S. 465, 476 (1987)
(requiring only partial redressability). Therefore, we may
proceed to the merits of appellants’ claim.

2. Merits

Appellants challenge the Coast Guard’s actions regarding
the traffic separation scheme process as violations of ESA
sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2),
1538. The district court dismissed this challenge, concluding
that the International Maritime Organization, a multinational
body, adopted the traffic separation schemes at issue, not the
Coast Guard. Defenders of Wildlife, 484 F. Supp. 2d at 55.
Because the district court held that there was no final agency
action, the court concluded that it lacked jurisdiction to consider
appellants’ claims against the Coast Guard. Id. at 55–56.

The parties dispute whether “agency action” or “final
agency action” is required in order to bring suit under the
citizen-suit provision of the ESA, 16 U.S.C. § 1540(g), based on
a violation of ESA section 7(a)(2)’s consultation requirement.
Appellants extract a simple “agency action” requirement from
the text of ESA section 7(a)(2), which speaks only to “agency
action.” 16 U.S.C. § 1536(a)(2) (“Each 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
(hereinafter in this section referred to as an ‘agency action’) is
 24

not likely to jeopardize the continued existence” of endangered
species or their habitats.). Appellees argue that the “final
agency action” requirement in the second clause of the
Administrative Procedure Act should be read into ESA section
7(a)(2). See 5 U.S.C. § 704 (“Agency action made reviewable
by statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.”). We
find it unnecessary to resolve this issue because we hold that
appellants are challenging final agency action by the Coast
Guard.

As they did in their standing arguments, appellees
characterize the traffic separation scheme process as one
controlled by an international organization with the State
Department acting as an intermediary between the international
body and the Coast Guard, leaving the Coast Guard with a minor
and purely ministerial role. However, the record shows quite a
different role for the Coast Guard in this process. Most
significantly, the Coast Guard is the sole body charged with the
duty of promulgating traffic separation schemes. 33 U.S.C.
§ 1223(c)(1); see 33 C.F.R. § 1.05-1. Appellees point to no
congressional authorization permitting the State Department to
promulgate traffic separation schemes. Nor can they point to
any provision that gives the International Maritime
Organization, which was created as a “consultative and
advisory” body, Convention on the Intergovernmental Maritime
Consultative Organization, art. 2, Mar. 6, 1948, 9 U.S.T. 621,
T.I.A.S. 4004, authority to promulgate regulations in U.S.
waters. Treaties “are not domestic law unless Congress has
either enacted implementing statutes or the treaty itself conveys
an intention that it be self-executing and is ratified on these
terms.” Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008)
(internal quotation marks omitted). Appellees do not contend
that Congress has enacted implementing statutes for the treaty
at issue, International Convention for the Safety of Life at Sea
 25

(“SOLAS”), Nov. 1, 1974, 32 U.S.T. 47, T.I.A.S. 9700, or that
the treaty is self-executing. In fact, the treaty relies on member
nations to enforce its routing measures: “Contracting
Governments will use their influence to secure the appropriate
use of adopted routes and will do everything in their power to
ensure adherence to the measures adopted by the Organization
in conne[ct]ion with rout[]ing of ships.” SOLAS, ch. 5, reg.
8(d).

By giving the Coast Guard authority to promulgate traffic
separation schemes, Congress intended to make the Coast Guard
accountable for them. See 33 U.S.C. § 1223(c)(1). Were we to
hold that the Coast Guard had delegated its duties under the
Ports and Waterways Safety Act to the International Maritime
Organization, and that this delegation relieved the Coast Guard
of any responsibility for the final action, we would countermine
this intent. Such an outcome would also undermine several
other statutes that Congress enacted to give parties the ability to
challenge unlawful agency action. A party harmed by the Coast
Guard’s failure to take into account “the safety and security of
United States ports and waterways,” 33 U.S.C. § 1224(a), or the
“economic impact and effects,” id. § 1224(a)(7), of traffic
separation schemes would normally have recourse under the
citizen-suit provision of the Endangered Species Act, 16 U.S.C.
§ 1540(g), or the Administrative Procedure Act. But if the
Coast Guard delegates its responsibility for traffic separation
schemes to the International Maritime Organization, and if we
accept this delegation as relieving the Coast Guard of any
responsibility for them, no such recourse is available. The
International Maritime Organization is not subject to the
Administrative Procedure Act or the ESA. As we noted in U.S.
Telecom Ass’n v. FCC, 359 F.3d 554 (D.C. Cir. 2004), “when an
agency delegates power to outside parties, lines of
accountability may blur, undermining an important democratic
check on government decision-making.” Id. at 565. Appellees
 26

point to no evidence showing that Congress intended to
undermine the ability of injured parties to challenge unlawful
agency action in the promulgation of traffic separation schemes.
Just as the President cannot “unilaterally convert[] a non-self-
executing treaty into a self-executing one,” Medellin, 128 S. Ct.
at 1368, the Coast Guard cannot convert the SOLAS treaty into
domestic law by simply delegating its congressionally given
authority under the Ports and Waterways Safety Act to the
International Maritime Organization.

Even if the Coast Guard had delegated some or all of its
decisionmaking authority under the Ports and Waterways Safety
Act to an outside body not subordinate to it, such as the
International Maritime Organization, the delegation would be
unlawful absent affirmative evidence that Congress intended the
delegation. “[W]hile federal agency officials may subdelegate
their decision-making authority to subordinates absent evidence
of contrary congressional intent, they may not subdelegate to
outside entities—private or sovereign—absent affirmative
evidence of authority to do so.” U.S. Telecom, 359 F.3d at 566.
Appellees do not argue that affirmative evidence of
congressional intent to subdelegate the Coast Guard’s
decisionmaking authority to an outside party exists.

The simple fact that an agency possesses statutory authority
is not a basis for finding final agency action if no evidence exists
that the agency used it. However, appellants have presented
evidence of final agency action in this case. The Coast Guard
has conducted port access route studies, see, e.g., Port Access
Routes: Approaches to Portland, ME and Casco Bay, 70 Fed.
Reg. 7067 (Feb. 10, 2005), published notice of port access route
study results, see Port Access Routes: Approaches to Delaware
Bay, 60 Fed. Reg. 49,237 (Sept. 22, 1995), accepted comments
on a proposed route, see TSS in the Approaches to Delaware
Bay, 65 Fed. Reg. 12,944 (Mar. 10, 2000), and ensured that
 27

traffic separation schemes appear in the Code of Federal
Regulations, see, e.g., 33 C.F.R. § 167.170 (traffic separation
scheme for the approach to the waters off Delaware Bay). These
tasks are not merely ministerial; they require a significant
amount of discretion. In promulgating traffic separation
schemes, the Coast Guard must

(a) take into account all relevant factors concerning
navigation and vessel safety, protection of the marine
environment, and the safety and security of United
States ports and waterways, including but not limited
to—(1) the scope and degree of the risk or hazard
involved; (2) vessel traffic characteristics and trends
. . . ; (3) port and waterway configurations and variations
in local conditions of geography, climate, and other
similar factors; (4) the need for granting exemptions for
the installation and use of equipment or devices for use
with vessel traffic services for certain classes of small
vessels . . . ; (5) the proximity of fishing grounds, oil and
gas drilling and production operations, or any other
potential or actual conflicting activity; (6) environmental
factors; (7) economic impact and effects; (8) existing
vessel traffic services; and (9) local practices and
customs, including voluntary arrangements and
agreements within the maritime community; and (b) at
the earliest possible time, consult with and receive and
consider the views of representatives of the maritime
community, ports and harbor authorities or associations,
environmental groups, and other parties who may be
affected by the proposed actions.

33 U.S.C. § 1224. The Coast Guard accepts and responds to
public comment on all the above issues prior to codifying a
traffic separation scheme in the Code of Federal Regulations.
See, e.g., Traffic Separation Scheme in the Approaches to
 28

Delaware Bay, 62 Fed. Reg. 25,576, 25,577 (May 9, 1997)
(stating, in the notice of proposed rulemaking, that changes may
result from the notice-and-comment period). Accordingly,
appellants have demonstrated final agency action, and the
district court erred in granting summary judgment to appellees
based on its conclusion that it lacked subject matter jurisdiction.

Because we reverse the district court’s holding on the
“agency action” issue and remand the case to that court to
reconsider the cross motions for summary judgment in light of
our holding, it is unnecessary to decide whether the district court
abused its discretion in denying appellants’ motion to reconsider
its judgment on that issue.

III. Conclusion

We affirm the district court’s denial of appellants’ challenge
to NMFS’s denial of the emergency rulemaking petition and
reverse the district court’s grant of summary judgment to
appellees on the Coast Guard issue. We remand this case to the
district court.