This case challenges a decision by the National Marine Fisheries Service to exclude from the listing of the Southern Resident killer whale population all captive members of that population and their progeny. By excluding the captive members from the endangered species list under the Endangered Species Act, plaintiffs contend that NMFS has failed to protect these animals from being harmed, harassed, and even killed, as otherwise prohibited under the ESA, and has acted in a manner that is arbitrary and capricious, an abuse of discretion, and not in accordance with law, within the meaning of the APA.
Complaint for Declaratory and Injunctive Relief
Brian A. Knutsen, Smith & Lowney, PLLC, 2317 East John Street, Seattle, Washington 98112, (206) 860-2883, Attorneys for Plaintiffs.
1. This case challenges a decision by the National Marine Fisheries Service (“NMFS”) to exclude from the listing of the Southern Resident killer whale population all captive members of that population and their progeny. By excluding the captive members from the endangered species list under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., without any explanation, NMFS has failed to protect these animals from being harmed, harassed, and even killed, as otherwise prohibited under the ESA, and has acted in a manner that is arbitrary and capricious, an abuse of discretion, and not in accordance with law, within the meaning of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2). As a consequence, captive members of this species continue to be kept in conditions that cause them great harm and suffering with absolute impunity under the ESA. Accordingly, Plaintiffs seek an order setting aside the agency's decision to exclude the captive members of this species from the list of endangered species.
JURISDICTION
2. This Court has jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1331, the Declaratory Judgment Act, 28 U.S.C. § 2202, and the Administrative Procedure Act, 5 U.S.C. § 706(2).
PARTIES
3. Plaintiff Shelby Proie lives in Olympia, Washington. She has studied and observed orcas for many years and experiences great aesthetic pleasure from doing so. She has observed the Southern Resident killer whales in the wild on many occasions, and will continue to do so regularly in the future. Her ability to continue to observe this wildlife in the future is impaired by NMFS's decision to exclude the captive members of the population from the list of endangered species. As the Fish and Wildlife Service (“FWS”) has recognized in the past, protecting captive members of a listed species is necessary to ensure that the species will not become extinct in the future and that it can eventually be recovered -- i.e., restored to the point where it no longer needs the protections of the ESA. Thus, NMFS's decision impairs Ms. Proie's ability to continue to enjoy this species in the future should captive members be needed to prevent the species from further decline or to ensure its recovery.
4. Ms. Proie also has spent time studying and observing a captive member of the Southern Resident killer whale population named Lolita, who, since she was captured from the wild over forty years ago, has been maintained at an aquarium in Miami, Florida, called the Miami Seaquarium (“MSQ”). At MSQ, Lolita is confined to an inadequate tank, which is smaller than the minimum regulatory requirements, is without sufficient space, without any companions of her own species, and without sufficient shelter from the sun. Ms. Proie has observed and photographed Lolita many times in captivity, and she has formed a strong emotional bond with Lolita. She has submitted materials to both MSQ and the federal government in an effort to obtain more humane conditions for Lolita, but has been unable to obtain any such relief. She would like to continue to visit Lolita to maintain and enjoy her personal relationship with Lolita, but is aesthetically harmed whenever she does so because it causes her great pain and anguish to see Lolita in her current living conditions. She also does not want to provide any financial support to the facility that maintains Lolita in these conditions through the cost of a ticket to see Lolita.
5. Ms. Proie is aesthetically and emotionally injured by having to make the choice between paying MSQ to visit Lolita in these conditions and refraining from visiting Lolita, with whom she has formed a strong emotional bond. Ms. Proie is also harmed by NMFS's decision to exclude Lolita from the endangered listing of the Southern Resident killer whale population because it allows MSQ to keep Lolita in conditions that harm and harass her, and that otherwise would be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), if Lolita were included as listed wildlife.
6. Ms. Proie's educational and aesthetic interests would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would provide the wild population added protection by ensuring that the captive members are preserved and protected for the future research, educational, biological, management and other benefits they provide the wild population. It would also ensure that Lolita could no longer be “taken” in violation of the statute, and thus ensure that she would be treated humanely and possibly returned to the wild. If Lolita was protected by the ESA, treated humanely, and her living conditions improved accordingly, Ms. Proie would visit and observe her as often as possible.
7. Plaintiff Karen Munro lives in Olympia, Washington. She has had an intense interest for over thirty-five years in protecting orcas, including those in the wild and in captivity. Ms. Munro has observed the wild members of the Southern Resident killer whale population many times over the years and will continue to see them in the future. She experiences great aesthetic pleasure from viewing these animals in the wild. Ms. Munro's ability to continue to observe this wildlife in the future is impaired by NMFS's decision to exclude the captive members of the population from the endangered listing because protecting captive members of a listed species is necessary to ensure that the species will not become extinct in the future and that it can eventually be recovered. Thus, NMFS's decision impairs her ability to continue to enjoy this species in the wild should captive members of the species be needed to prevent the species from further decline or to ensure its recovery.
8. Ms. Munro has seen young orcas captured in the wild by the exhibition industry -- an experience that caused her great anguish and stress and continues to haunt her to this day. This experience has motivated her to do everything in her power to protect the wild populations and to help orcas that have been removed from the wild to be reunited with their families. It is because of this experience that Ms. Munro has learned about and become dedicated to rescuing Lolita. Ms. Munro has devoted a substantial amount of time over the years to helping improve the conditions in which Lolita lives, and she has an intense interest in helping Lolita return to the wild Southern Resident killer whale population from which she was captured and removed when she was very young.
9. Ms. Munro has helped organize protests in Miami concerning Lolita and has stayed informed over the years about Lolita's condition and plight. She has read publications about Lolita, talked to individuals with personal knowledge of Lolita's condition and the conditions in which she is kept, and viewed videotape and photographs of Lolita. Through these experiences and because of her personal experience in seeing young orcas torn from their families in the wild, Ms. Munro has developed a strong emotional attachment to Lolita and wants to help her. Ms. Munro would very much like to visit Lolita in person, but is unable to do so without suffering great aesthetic and emotional injury and pain from seeing Lolita in her current living conditions, in an inadequate tank, without companions of her own species, and without appropriate protection from the sun. Ms. Munro also does not want to contribute financially to the MSQ, which maintains Lolita in these conditions. Ms. Munro's aesthetic interests in seeing Lolita in a humane setting are greatly impaired by NMFS's decision to exclude Lolita from the endangered listing of the Southern Resident killer whale population because it allows MSQ to keep Lolita in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), if Lolita were included as listed wildlife with the rest of her family and population.
10. Ms. Munro's educational and aesthetic interests would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would provide the wild population with added protection by ensuring that the captive members are preserved and protected for the future research, educational, biological, management and other benefits they provide the wild population. It would ensure that Lolita could no longer be “taken” in violation of the statute, and thus ensure that she would be treated humanely and possibly returned to the wild. If Lolita was protected by the ESA, treated humanely and possibly returned to the wild, Ms. Munro would visit and observe her as often as possible.
11. Plaintiff Patricia Sykes lives in Denver Colorado. She was employed at MSQ in 1970 when Lolita was first captured from the wild and brought to MSQ to be placed on exhibit, and was part of the staff responsible for Lolita's husbandry and transition to a life in captivity. Ms. Sykes personally observed Lolita endure great suffering caused by her capture and the unnatural living conditions in captivity. Ms. Sykes formed a strong emotional bond with Lolita and wants to do everything in her power to help her. Ms. Sykes can no longer bear to visit Lolita in her current conditions without suffering great aesthetic and emotional harm. Ms. Sykes is aesthetically and emotionally injured by having to make the choice between paying MSQ the cost of admission to visit Lolita in these conditions and refraining from visiting Lolita, with whom she has formed a strong emotional bond. She is also harmed by NMFS's decision to exclude Lolita from the endangered listing of the Southern Resident killer whale population, which allows MSQ to keep Lolita in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), if Lolita were included as listed wildlife.
12. Ms. Sykes's educational and aesthetic interests would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would ensure that Lolita could no longer be “taken” in violation of the statute. If Lolita was protected by the ESA, treated humanely and her living conditions improved accordingly, Ms. Sykes would visit and observe her as often as possible.
13. Plaintiff Animal Legal Defense Fund (“ALDF”) is a non-profit corporation founded in 1979 to protect the lives and interests of animals through the enforcement of laws enacted to protect animals. Based in Cotati, California, ALDF has approximately 100,000 members nationwide. It brings this case on behalf of its members who have aesthetic and educational interests in preserving and recovering the Southern Resident killer whales, make efforts to see them in the wild, and wish to continue to see them in the future. ALDF's members' ability to continue to observe the Southern Resident killer whales in the future is impaired by NMFS's decision to exclude the captive members of the population from the list of endangered species because protecting captive members of a listed species is necessary to ensure that the species will not become extinct in the future and can eventually be recovered.
14. ALDF also brings this case on behalf of members who have aesthetic interests in Lolita. ALDF's members have seen her in captivity, have grown fond of her, and are aesthetically harmed by seeing her confined to an inadequate tank without shelter from the Miami sun or companions of her own species. These members' aesthetic and emotional interests are harmed by NMFS's decision to exclude Lolita from the endangered listing of the Southern Resident killer whale population, allowing MSQ to keep Lolita in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), if Lolita were included as listed wildlife.
15. ALDF's members' educational and aesthetic interest would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would provide the wild population with added protection by ensuring that the captive members are preserved and protected for the future research, educational, biological, management, and other benefits they provide the wild population, and would also ensure that Lolita could no longer be “taken” in violation of the statute. If Lolita was protected by the ESA, treated humanely and her living conditions improved accordingly, ALDF's members would visit and observe her as often as possible.
16. Plaintiff People for the Ethical Treatment of Animals (“PETA”) is a non-profit organization dedicated to protecting animals from abuse, neglect, and cruelty, and undertakes these efforts through public education, cruelty investigations, research, animal rescue, legislation, special events, celebrity involvement, protest campaigns, and lawsuits to enforce laws enacted to protect animals. PETA brings this case on behalf of its members, some of whom have aesthetic and educational interests in preserving and recovering the Southern Resident killer whale population, make efforts to see these animals in the wild, and wish to continue to have those opportunities in the future to the fullest extent possible. PETA's members' ability to continue to observe this wildlife in the future is impaired by NMFS's decision to exclude the captive members of the population from the list of endangered species because protecting captive members of a listed species is necessary to ensure that the species will not become extinct in the future and can eventually be recovered.
17. PETA also brings this case on behalf of its members who have aesthetic interests in Lolita -- they have seen her in captivity, have grown fond of her, and are aesthetically harmed by seeing Lolita living in an inadequate tank, which is smaller than the minimum regulatory requirements, without sufficient shelter from the sun or any companions of her own species. These members' aesthetic and emotional interests are harmed by NMFS's decision to exclude Lolita from the endangered listing of the Southern Resident killer whale population because it allows MSQ to continue to keep Lolita in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), if she were included as listed wildlife with the rest of her family and population.
18. PETA's members' educational and aesthetic interests would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would provide the wild population with added protection, by ensuring that the captive members are preserved and protected for the future research, educational, biological, management, and other benefits they provide the wild population, and it would also ensure that Lolita could no longer be “taken” in violation of the statute. If Lolita was protected by the ESA, treated humanely, and placed in more humane conditions accordingly, PETA's members would visit and observe her as often as possible.
19. Defendant NMFS is the agency responsible for the unlawful decision at issue in this case.
20. Defendant Eric Schwaab is the Assistant Administrator for Fisheries at NMFS and thus is the agency official responsible for the unlawful decision at issue here.
21. Defendant Rebecca Blank is the Acting Secretary of Commerce, the agency with authority over NMFS, and therefore has ultimate authority for the unlawful decision at issue in this case.
FACTS GIVING RISE TO PLAINTIFFS' CLAIMS
A. The Relevant Statutory Scheme
22. The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. 153, 180 (1978).
23. Section 9 of the ESA makes it unlawful to “take” any endangered species within the United States. 16 U.S.C. § 1538(a)(1)(B). The term “take” is broadly defined to include “harass, harm, pursue, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). It is to be construed “in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 704 (1995).
24. The Secretary of Commerce is responsible for administering the ESA with respect to marine animals; the Secretary of the Interior is responsible for administering the statute with respect to terrestrial animals. These responsibilities have been delegated to NMFS and FWS, respectively. 50 C.F.R. § 402.01(b).
25. The overall purpose of the ESA is to “conserve” endangered and threatened species and the ecosystems upon which they depend. 16 U.S.C. §§ 1531(b) -- (c). The term “conserve” means “to use ... all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided by [the ESA] ... are no longer necessary.” Id. § 1532(3).
26. The Act defines “species” as “any subspecies of fish or wildlife ... and any distinct population segment of any species or vertebrate fish of wildlife which interbreeds when mature.” Id. § 1532(16). An “endangered species” is a species that is “in danger of extinction throughout all or a significant portion of its range.” Id. § 1532(6).
27. Once a species is listed as “endangered” under the statute, it may not be “taken” without permission from either NMFS or the FWS. Id. § 1538(a)(1)(B).
28. The “take” and other provisions of the ESA apply to captive members of listed species as well as to those in the wild. As the FWS long ago explained, the statute “applies to both wild and captive populations of a species,” because “[c]aptive propagation and other uses of captive wildlife can benefit wild populations” by (1) “[i]ncreasing the likelihood that captive breeding populations will be established as a source of known genetic stock to bolster or replenish populations in the wild;” (2) “[r]educing the need to take stock from the wild for scientific or other purposes;” and (3) “[p]roviding opportunities for research that can lead to improved management of wild populations.” 44 Fed. Reg. 20044-45 (May 23, 1979); see also 63 Fed. Reg. 48634, 48636 (Sept. 11, 1998) (explaining that the term “take” in the ESA was defined by Congress to apply to endangered or threatened wildlife “whether wild or captive”).
29. The statute does not allow a wholesale exemption from the prohibitions of the Act for all captive members of a listed species. Rather, Section 9 provides that, while certain prohibitions that otherwise apply to listed species--such as a ban on their import and export--do not apply to wildlife “held in captivity ... on December 28, 1973 [the date the ESA was enacted],” 16 U.S.C. § 1538(b), this exemption does not apply to other enumerated prohibitions, including the prohibition on the “take” of such species. Id. § 1538(a)(1)(B).
30. In addition, even the limited exception for wildlife held in captivity when the statute was enacted in 1973 does not apply where the holding of such wildlife is done in “the course of a commercial activity.” Id. § 1538(b)(1).
31. In making listing decisions under Section 4 of the statute, 16 U.S.C. § 1533, the agencies are to consider only “the best available scientific and commercial data available” concerning the biological status of the species, id. § 1533(b)(1)(A), and are precluded from taking into account any economic considerations, such as whether listing the species would cause the holder of any member of the species any economic harm. Id.; S. Rep. No. 418, 97th Cong., 2d Sess. 12 (1982).
B. NMFS's Unlawful Decision to Exclude the Captive Members from the Listing of the Southern Resident Killer Whale Population
32. On November 18, 2005, NMFS issued a final rule listing as endangered the Southern Resident killer whale population, which the agency found to be a distinct population segment of orcas in danger of extinction. 70 Fed. Reg. 69903 (Nov. 18, 2005). Among the reasons provided by the agency for the listing decision was that “[t]he capture of killer whales for public display during the 1970s likely depressed their population size and altered the population characteristics sufficiently to severely affect their reproduction and persistence.” Id. at 69908.
33. The Southern Resident killer whale population consists of three pods--or families--the “J pod,” “K pod,” and “L pod.” Id. at 69905. Their range during the spring, summer, and fall includes the inland waterways of Puget Sound, Strait of Juan de Fuca, and Southern Georgia Strait. Id.
34. Lolita was a member of the L pod when she was captured in 1970 for public display and exhibition.
35. MSQ is a for-profit corporation. It charges the public admission to see Lolita perform tricks.
36. Upon information and belief, over the years, MSQ has made tens of millions of dollars from displaying Lolita to the public.
37. Orcas can live to be 80-90 years in the wild.
38. Lolita has family members who are still living in the wild.
39. When NMFS made its final decision to list the Southern Resident killer whale population as endangered, it excluded from the listing “[r]esident killer whales placed in captivity prior to listing or their captive born progeny.” 70 Fed. at 69912; 50 C.F.R. § 244.01(b).
40. In its final listing decision, NMFS provided no explanation for its decision to exclude all of the captive members of the Southern Resident killer whale population from the listing of that population as endangered.
41. Because of its final listing decision, NMFS has excluded Lolita from the protections of the ESA, thereby allowing her to be kept in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), including, but not limited to, being kept in an inadequate tank, without companions of her own species or adequate protection from the sun.
PLAINTIFFS' CLAIMS FOR RELIEF
Violations of the Administrative Procedure Act
42. NMFS's decision to exclude from the list of endangered species the captive members of the Southern Resident killer whale population, without any explanation, was arbitrary and capricious, an abuse of discretion, and not in accordance with law, within the meaning of the APA, 5 U.S.C. § 706(2).
43. NMFS's decision to exclude from the list of endangered species the captive members of the Southern Resident killer whale population, and thereby to deny such wildlife all of the protections of the ESA, including the prohibition against the “take” of an endangered species, was arbitrary and capricious, an abuse of discretion, and in violation of Section 9 of the ESA, 16 U.S.C. § 1538(b)(1), and hence violates the APA.
44. NMFS's decision to exclude from the list of endangered species the captive members of the Southern Resident killer whale population, regardless of whether such wildlife is used in the course of a commercial activity, was arbitrary and capricious, an abuse of discretion, and in violation of Section 9 of the ESA, 16 U.S.C. § 1538(b)(1), and hence violates the APA, 5 U.S.C. § 706(2).
WHEREFORE, Plaintiffs pray that this Court enter an order:
1. Declaring that Defendants' decision to exclude from the list of endangered species the captive members of the Southern Resident killer whale population was arbitrary and capricious, an abuse of discretion, and not in accordance with law;
2. Setting aside that part of Defendants' final listing decision, 50 C.F.R. § 244.101(b), that excludes from the list of endangered species the captive members of the Southern Resident killer whale population;
3. Granting Plaintiffs their attorneys' fees and costs associated with bringing this action; and
4. Granting Plaintiffs such further relief as may be appropriate.
RESPECTFULLY SUBMITTED this 17th day of November, 2011.
SMITH & LOWNEY, PLLC
By: s/ Brian A. Knutsen
Brian A. Knutsen, WSBA # 38806
2317 E. John Street, Seattle, WA 98112
Tel: (206) 860-2883; Fax: (206) 860-4187
Email: briank@igc.org
Neil Abramson[FN*]
FN* Admission pro hac vice pending
Jacqueline M. Dorn[FN*]
FN* Admission pro hac vice pending
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Ph.: (212) 969-3000
Fax: (212) 969-2900
Email: jdorn@ proskauer.com nabramson@proskauer.com
Katherine A. Meyer*
Meyer Glitzenstein & Crystal
1601 Connecticut Ave., N.W. Suite 700
Washington, D.C. 20009
Ph.: (202) 588-5206
Fax: (202) 588-5049
Email: kmeyer@meyerglitz.com
ATTORNEYS FOR PLAINTIFFS