Justice Department moves to dismiss whale strike lawsuit over California shipping lanes

SAN FRANCISCO (CN) — The Department of Justice asked a federal judge Wednesday to dismiss a lawsuit brought by two environmental nonprofits that claim the U.S. Coast Guard and the National Marine Fisheries Service have not done enough to prevent whale strikes in California shipping lanes.

Jennifer Sundook, an attorney for the Department of Justice, told U.S. Magistrate Judge Laurel Beeler that the court should toss claims related to the Pacific Coast Port Access Route Study (PAC PARS), arguing it is not final agency action.

Sundook said the port access route study is a nonbinding recommendation from a regional Coast Guard office to senior leadership. She added that PAC PARS has no real-world consequences because the shipping lines were not codified, adopted by the International Maritime Organization, or included in nautical charts.

“There is no legal effect, no legal consequences. It is not final agency action,” she said.

Sundook further argued the plaintiffs’ claims are not ripe because the Coast Guard is still conducting an environmental analysis as part of the process of codifying the shipping lanes, meaning the decision-making process is not complete.

“The Coast Guard is in the middle of doing what [the plaintiffs] want the court to do,” she said.

Catherine Kilduff, an attorney for the Center for Biological Diversity, countered that PAC PARS is a final agency action because it is a congressionally mandated study, was published in the Federal Register and recommends shipping routes that are generally followed.

Kilduff argued Congress does not require International Maritime Organization recognition or formal codification for the study to be considered final agency action, saying the statute requires only completion of the study and notice in the Federal Register.

“Here, the Federal Register notice is evidence that the PARS is concluded,” she said.

She also disputed the government’s claim that the recommendations have no real-world consequences, saying the case concerns “ships killing whales in Coast Guard-designated shipping lanes.”

After the hearing, Kilduff told Courthouse News that the Coast Guard-designated shipping lanes run through areas where large groups of endangered blue whales are found, and that increased shipping to California further increases the risk to whales.

“We’re hoping that this hearing results in immediate action. We’ve been waiting for many, many years, and don’t think it’s an excuse when the Coast Guard says they’re continuing agency action,” she said.

Sundook declined to comment.

Beeler did not indicate when she would issue a ruling.

The Center for Biological Diversity and Friends of the Earth sued the government in October, arguing federal agencies are required to analyze and reduce noise and air pollution from large vessels near whale and sea turtle habitats.

According to the Marine Mammal Center in Marin County, at least 10 gray whales have likely been killed by ship strikes in the Bay Area so far this year. About 80 whale deaths along the West Coast in a typical year may be attributable to ship strikes, and one study found ship strikes are a leading cause of death for blue, fin, gray and humpback whales. All four Pacific populations are protected under the Endangered Species Act.

The plaintiffs said the Coast Guard, under the Ports and Waterways Safety Act, must study traffic density and the need for safe access routes, including environmental considerations.

They argued existing shipping lanes pass through “hot spots” where whales migrate, gather and forage, including the Santa Barbara Channel and the northern approach to the San Francisco Bay.

Follow @mhattridge_