Ctr. for Biological Diversity v. Ross

• Decision Date: 31 October 2019
• Docket Number: Civil Action No. 18-112 (JEB)
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Wilbur ROSS, in his official capacity as Secretary of Commerce, et al., Defendants, and Massachusetts Lobstermen's Association, Inc., Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

419 F.Supp.3d 16

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Wilbur ROSS, in his official capacity as Secretary of Commerce, et al., Defendants,andMassachusetts Lobstermen's Association, Inc., Defendant-Intervenor.

Civil Action No. 18-112 (JEB)

United States District Court, District of Columbia.

Signed October 31, 2019

Kristen Monsell, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, Jane P. Davenport, Defenders of Wildlife, Laura Friend Smythe, Humane Society of the United States, Washington, DC, Sarah Uhlemann, Center for Biological Diversity, Seattle, WA, Emily K. Green, Pro Hac Vice, Sean Mahoney, Pro Hac Vice, Conservation Law Foundation, Portland, MA, Erica A. Fuller, Pro Hac Vice, Conservation Law Foundation, Boston, MA, Roger M. Fleming, Blue Planet Strategies, LLC, Hallowell, ME, for Plaintiffs.

John B. Grosko, Frederick Harter Turner, U.S. Department of Justice, Environment and Natural Resource Wildlife and Marine Resources Section, Washington, DC, for Defendants.

Ann Sobolewski, Pro Hac Vice, Nicholas Nesgos, Pro Hac Vice, Posternak Blankstein and Lund LLP, Boston, MA, Eric P. Gotting, Keller & Heckman, LLP, Washington, DC, for Defendant-Intervenor.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

As this dispute about the effects of lobster fishing on the North Atlantic right whale sails along its charted course, the Government Defendants ask the Court to heave to and stay the suit pending their promulgation of two new conservation measures that they claim will moot the case. Because the Court finds that they have shown no compelling need for a stay, and because harm to a critically endangered species hangs in the balance, the Court will deny the Motion.

I. Background

In January 2018, Plaintiffs Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife, and The Humane Society of the United States filed their Complaint in this case. See ECF No. 1. The four asserted claims arose from the National Marine Fisheries Service's 2014 publication of a Biological Opinion as part of its duties under the Endangered Species Act. In the 2014 BiOp, which considered the effects of the New England Fishery Management Council's American lobster fishery on ESA-listed species and critical habitats, NMFS found that the fishery was not likely to jeopardize the endangered North Atlantic right whale, despite also concluding that "the lobster fishery has the potential to seriously injure or kill an average of 3.25 right whales per year." ECF No. 71 (Pl. Resp.), Exh. 2 (2014 BiOp) at 4. Plaintiffs' first claim is that this "no jeopardy" opinion violated the ESA — as judged by the "arbitrary and capricious" standard of review in the Administrative Procedure Act, see Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005) — because (a) it improperly limited the scope of its jeopardy analysis in several ways, (b) its conclusion was not rationally connected to its stated facts, and (c) it failed to include a required "incidental take statement" for the whales. See Compl., ¶¶ 117–25. Given the purported invalidity of the 2014 BiOp, Plaintiffs next allege that NMFS has not complied with its duty under Section 7(a)(2) of the ESA to "insure" that the lobster fishery does not jeopardize the whale. See 16 U.S.C. § 1536(a)(2) ; Compl., ¶¶ 126–29. Plaintiffs' third and fourth claims contend that, because NMFS recognized in its BiOp the lobster fishery's lethality and yet continues to allow it to operate without change, the Service stands in violation of both the ESA and the Marine Mammal Protection Act (MMPA), each of which prohibits the unauthorized "take" of endangered species. See Compl., ¶¶ 130–39 (citing 16 U.S.C. §§ 1538(a)(1)(B), (g) ; then citing id. §§ 1371(a), 1372(a)).

This Court granted the parties' joint request "that discovery and briefing should both be bifurcated, with the first phase to address liability and a second, future phase to address remedy, if necessary." ECF No. 48 (Joint Mot. to Clarify), ¶ 2. After the close of discovery, Plaintiffs filed a Motion for Summary Judgment in June 2019. NMFS requested, and was granted, additional time to file its opposition. It then filed the present Motion to Stay, along with a motion requesting that its opposition be due 14 days after the Court decides whether to grant a stay. The Court granted the latter motion, meaning that summary-judgment briefing is now on hold pending the resolution of the Motion to Stay.

NMFS's stay request arises from its intent to issue, by July 31, 2020, both (1) a new BiOp for the American lobster fishery and (2) a regulation amending the Atlantic Large Whale Take Reduction Plan (TRP). See ECF No. 68 (NMFS Mot. to Stay) at 2. By way of background, Section 118 of the MMPA requires NMFS to implement a TRP in order to reduce the harm to endangered species to a sustainable level. See generally 16 U.S.C. § 1387(f). The Service promulgates a TRP after consulting with an advisory Take Reduction Team (TRT). Id.

In its Motion, NMFS argues that: (1) its new BiOp and TRP will moot Plaintiffs' claims; (2) both instruments will "allow[ ] NMFS to implement the kind of measures Plaintiffs purport to champion at about the same time (or sooner) than would happen if the parties were to proceed with summary judgment briefing"; and (3) denial of a stay would cause NMFS "the hardship of having to file a summary judgment brief on the very issues the TRT discussed over a year and a half, which could upset the balance of the equities struck by NMFS and TRT." NMFS Mot. to Stay at 2.

II. Legal Standard

A federal district court "has broad discretion to stay proceedings as an incident to its power to control its own docket." Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (citing Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ). In "the exercise of [its] judgment," the Court must " ‘weigh competing interests and maintain an even balance’ between the court's interests in judicial economy and any possible hardship to the parties." Belize Soc. Dev. Ltd. v. Gov't of Belize, 668 F.3d 724, 732–33 (D.C. Cir. 2012) (citation omitted) (quoting Landis, 299 U.S. at 254–55, 57 S.Ct. 163 ; then citing id. at 259, 57 S.Ct. 163 ). "The proponent of a stay bears the burden of establishing its need." Clinton, 520 U.S. at 708, 117 S.Ct. 1636 (citing Landis, 299 U.S. at 255, 57 S.Ct. 163 ). A court's stay order "must be supported by ‘a balanced finding that such need overrides the injury to the party being stayed.’ " Belize Soc. Dev., 668 F.3d at 732 (quoting Dellinger v. Mitchell, 442 F.2d 782, 787 (D.C. Cir. 1971) ). "[I]f there is even a fair possibility that the stay ... will work damage to some one else," the movant "must make out a clear case of hardship or inequity in being required to go forward." Landis, 299 U.S. at 255, 57 S.Ct. 163. In order to determine whether a stay should issue, then, this Court considers (1) harm to the nonmoving party if a stay does issue; (2) the moving party's need for a stay — that is, the harm to the moving party if a stay does not issue; and (3) whether a stay would promote efficient use of the court's resources.

III. Analysis

This Opinion separately addresses the three considerations set out above.

A. Harm to Plaintiffs

The Court first considers " ‘the injury to the party being stayed.’ " Belize Soc. Dev., 668 F.3d at 732 (quoting Dellinger, 442 F.2d at 787 ). As noted above, if it determines that there is a "fair possibility that the stay ... will work damage to" Plaintiffs' interests, NMFS's burden becomes even heavier, for it must then show "a clear case of hardship or inequity in being required to go forward." Landis, 299 U.S. at 255, 57 S.Ct. 163.

Plaintiffs straightforwardly argue that NMFS's alleged ongoing violations of the ESA and MMPA would continue unabated during the pendency of a stay, further endangering North Atlantic right whales and thus harming "Plaintiffs' interests in conserving the ever-diminishing right whale population." Pl. Resp. at 13. The 2014 BiOp found that "the lobster fishery ha[d] the potential to seriously injure or kill an average of 3.25 right whales per year," 2014 BiOp at 4, a rate well above the single human-caused death the whale population can sustain each year. See ECF No. 72 (NMFS Reply), Exh. A (North Atlantic Right Whale 5-Year Review) at 17. Because waiting for passage of the two measures currently in the works at NMFS merely exacerbates this harm, Plaintiffs argue that a stay "would sanction an ongoing violation of the ESA." Pl. Resp. at 15 (quoting Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 97 (D. Me. 2008) ). They cite several district courts concurring with this position. Id. at 15–16 (citing Conservation Council v. NMFS, 97 F. Supp. 3d 1210, 1231–32 (D. Haw. 2015) ; Cal. Trout v. U.S. Bureau of Reclamation, 115 F. Supp. 3d 1102, 1114–15 (C.D. Cal. 2015) ; and Animal Welfare Inst., 588 F. Supp. 2d at 96–97 ).

NMFS does not refute the evidence of the lobster fishery's harm to the whales — nor could it, since it was the one to publish that information. See North Atlantic Right Whale 5-Year Rev. at 17. It nonetheless counters that a stay "will not prejudice Plaintiffs." NMFS Mot. to Stay at 12. "Allowing NMFS to focus on implementing the results of the TRT process," it says, "is the best way to achieve the goals Plaintiffs purport to seek." Id. at 13. This is particularly so, it argues, because "[e]ven if the Court were to issue a decision on the merits shortly after the parties' briefing on the merits is complete on October 25, 2019, and the Plaintiffs were to prevail," the briefing for the remedy phase would likely go into early 2020, when NMFS expects to have "issued its proposed new rule and draft BiOp." Id. at 13 (citing id., Exh. A (Declaration of Jennifer Anderson), ¶ 16).

Although superficially appealing, this argument is ultimately unavailing. Most broadly, it is not...