Ctr. for Biological Diversity v. Ross

• Decision Date: 19 August 2020
• Docket Number: Civil Action No. 18-112 (JEB)
• Citation: 480 F.Supp.3d 236
• 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., et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

480 F.Supp.3d 236

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., et al., Defendant-Intervenors.

Civil Action No. 18-112 (JEB)

United States District Court, District of Columbia.

Signed August 19, 2020

Kristen Monsell, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, Erica A. Fuller, Conservation Law Foundation, Boston, MA, 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, for Plaintiffs Center for Biological Diversity, Defenders of Wildlife, Humane Society of the United States.

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, for Plaintiff Conservation Law Foundation.

Connor Ahearn, Pro Hac Vice, Mary Anne Mason, Crowell & Moring LLP, Jane C. Luxton, Lewis Brisbois Bisgaard & Smith LLP, Washington, DC, for Defendant-Intervenor Maine Lobstermen's Association.

Karen Ellis Carr, Arent Fox LLP, Eric P. Gotting, Keller & Heckman, LLP, Washington, DC, Nicholas Nesgos, Pro Hac Vice, Arent Fox LLP, Boston, MA, for Defendant-Intervenor Massachusetts Lobstermen's Association, Inc.

Alfred C. Frawley, IV, Pro Hac Vice, Thimi Robert Mina, McCloskey, Mina, Cunniff & Frawley LLC, Portland, ME, for Defendant-Intervenor Maine Lobstering Union.

Stephen Michael Ouellette, Ouellette Law Office, Gloucester, MA, for Defendant-Intervenor Little Bay Lobster, LLC.

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

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge North Atlantic right whales frequently become entangled in fishing gear used by commercial lobster fishermen. Entanglement can seriously injure or kill a right whale, and these unfortunate events are one of the main reasons why the species is endangered, with approximately 400 left on earth. This Court previously invalidated the National Marine Fisheries Service's 2014 Biological Opinion regarding the agency's management of the American lobster fishery for failing to sufficiently take these perilous circumstances into account. Without a valid BiOp, the agency cannot lawfully authorize the fishery under the Endangered Species Act. The Court thus ordered further briefing on the question of remedy; in other words, what should happen to the fishery while NMFS promulgates a new BiOp?

Given that an NMFS rulemaking process that will result in new right-whale conservation measures and the issuance of a superseding BiOp has been underway for some time, even the conservation-group Plaintiffs agree that the agency should have until at least early 2021 to complete such new BiOp. Beyond that, though, the parties diverge on three key remedial questions. First, should the Court vacate the 2014 BiOp or remand it to the agency without vacatur? Second, should the agency be required to complete the new rule and accompanying BiOp by January 31, 2021 (as Plaintiffs propose), or should it be given until May 31, 2021 (as Defendants ask)? Finally, should the Court grant Plaintiffs’ request for an interim injunction ordering the immediate cessation of lobstering in a substantial area south of Nantucket Island off the Massachusetts coast until the new rule is implemented?

On the BiOp issues, the Court renders a split decision: vacatur of the 2014 BiOp is appropriate, but that relief shall be stayed until May 31, not January 31, 2021, to give Defendants time to complete the new rule and BiOp. The Court does not believe, moreover, that Plaintiffs’ immediate cessation injunction is warranted.

I. Background

The Court here provides a somewhat truncated summary of the relevant statutory and procedural background to this litigation. For a fuller discussion, readers are referred to the Court's prior two Opinions. See ECF No. 91 (SJ Op.); ECF No. 76 (Stay Op.).

A. The 2014 BiOp

Before NMFS may authorize the continued operation of the American lobster fishery, the Endangered Species Act requires it to produce a Biological Opinion assessing the fishery's impact on the right whale. See 16 U.S.C. § 1536(a)(2), (b) ; SJ Op. at 8–10; ECF No. 81-1 (Defs. Opp. & Cross-Motion for SJ) at 3, 17. When developing a BiOp, if the agency concludes that "incidental take" (essentially, harm) to an endangered species is "reasonably certain to occur" from the agency action being assessed, the agency must produce an "incidental take statement" or ITS. See 50 C.F.R. § 402.14(g)(7) ; see also 16 U.S.C. § 1536(b)(4). An ITS, among other things, functions as kind of permit allowing incidental taking, which is otherwise unlawful under section 9 of the ESA. See 16 U.S.C. §§ 1532(13) ; 1536(o)(2); 1538(a)(1)(B), (g); see also Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 493 (D.D.C. 2014).

In the 2014 BiOp, NMFS concluded that the American lobster fishery would cause some incidental take of the right whale. See Defs. Opp. & Cross-Motion for SJ at 17. Yet the agency nevertheless did not include an ITS with that BiOp. The reason was simple: the agency could not lawfully issue an ITS vis-à-vis the right whale because it had not found — as required by the ESA before incidental take may be authorized — that "continued operation of the lobster industry w[ould] have [no more than] a ‘negligible impact’ " on the species. Id. at 27 (citing 16 U.S.C. § 1536(b)(4)(C) ; id. § 1371(a)(5)). NMFS was aware of this prohibition, but it nonetheless chose to "issu[e] [the] BiOp without an ITS," rather than "issu[e] no BiOp (and therefore clos[e] the lobster fishery." Id. at 3. The agency argued that its choice was lawful under the ESA. Id.

This Court disagreed, rejecting the agency's argument that "because the fishery would not have been able to proceed had [NMFS] complied with the ESA, NMFS was justified in abandoning the Act's directives altogether." SJ Op. at 16–17. The Court accordingly held that the 2014 BiOp was unlawful and granted summary judgment to Plaintiffs. It then "order[ed] briefing from the parties on the issue of an injunctive remedy." Id.

B. The Atlantic Large Whale Take Reduction Team

The good news is that all stakeholders in the lobster fishery, including conservation groups, are not starting from square one. NMFS, in fact, has been engaged for some time now in developing new regulations aimed at decreasing the risk of entanglement of right whales in lobster-fishing gear. Those regulations will be the culmination of the latest efforts of the Atlantic Large Whale Take Reduction Team (TRT), a group convened by NMFS with the central purpose (as the name suggests) of decreasing the very takes Plaintiffs are concerned with. The new regulations will require a new BiOp, which will supersede the 2014 BiOp as the latest document covering NMFS's authorization of the lobster fishery.

The TRT was established pursuant to section 118(f) of the Marine Mammal Protection Act, which requires NMFS to "develop and implement a take reduction plan designed to assist in the recovery or prevent depletion of each ... stock [of certain marine mammals, including right whales] which interacts with [certain] commercial fisher[ies]," including the lobster fishery. See 16 U.S.C. § 1387(f)(1). The first goal of any take-reduction plan is to "reduce, within 6 months of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to levels less than the potential biological removal level established for that stock." Id. § 1387(f)(2). The "potential biological removal level" is defined as "the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population." 50 C.F.R. § 229.2. The right whale's PBR, according to NMFS, is 0.9 right whales, meaning the species is threatened by the non-natural death of even one cetacean per year. See SJ Op. at 10.

Section 118(f) contemplates that the take-reduction plans ultimately adopted by NMFS will be developed with the assistance of a "take reduction team." See 16 U.S.C. § 1387(f)(6). The TRT must include as members certain federal agencies, each coastal state with relevant fisheries, Regional Fishery Management Councils, interstate fisheries commissions, academic and scientific organizations, environmental groups, affected Native organizations, and industry. Id. § 1387(f)(6)(C). TRTs develop "draft take reduction plan[s]" by "consensus" and then submit them to NMFS, which must "take the draft take reduction plan into consideration" and eventually publish both the plan as submitted and any changes proposed by the agency, along with "proposed regulations to implement such plan." Id. § 1387(f)(7)(A), (B). Section 118 further requires NMFS to meet with the TRT every so often to monitor implementation of the take-reduction plan, and it obligates the agency to "amend the take reduction plan and implementing regulations as necessary to meet the requirements of this section." Id. § 1387(f)(7)(E)–(F).

NMFS established the TRT in 1996, and the process culminated in the adoption of the first Atlantic Large Whale Take Reduction Plan in 1997. The Plan has been amended several times since then. See, e.g., 79 Fed. Reg. 36,586 (June 27, 2014) ; 72 Fed. Reg. 57,104 (Oct. 5, 2007) ; 72 Fed. Reg. 34,632 (June 25, 2007).

Following an unusually deadly year for right whales in 2017, NMFS reconvened the TRT with an eye toward amending the Plan to further reduce entanglement of right whales in fishing gear. See Atlantic Large Whale Take Reduction Plan Modifications to Reduce Serious...