Dist. 4 Lodge of Int'l Ass'n v. Raimondo
| Decision Date | 16 October 2021 |
| Docket Number | 1:21-cv-00275-LEW |
| Parties | DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL LODGE 207, et al., Plaintiffs, v. GINA M RAIMONDO, in her official Capacity as Secretary of the United States Department of Commerce, et al., Defendants |
| Court | U.S. District Court — District of Maine |
ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
In this action, Plaintiffs challenge a component of the Final Rule issued by the Department of Commerce, National Oceanic and Atmospheric Administration (“NOAA”) under the caption “Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations; Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery.” 50 C.F.R. Parts 229 and 697 (Sept. 17, 2021). Among other measures set forth under the Final Rule, the Secretary has authorized the partial closure of Lobster Management Area One Restrict Area Offshore of Maine (“LMA 1” or “LMA 1 Restricted Area”)[1] on a recurring basis[2], between October and January (effective this year beginning October 18, 2021) which partial closure prohibits the use of gear that uses persistent buoy lines, also known as vertical buoy rope (“VBR”). In other words, the Secretary has effectively closed the LMA 1 restricted area to commercial lobster fishing by the vast majority of the permit holders who would fish for lobster in these waters.
According to the Final Rule, the justification for the closure is to reduce the incidence of right whale mortalities and serious injuries due to whale entanglement with VBR distributed throughout the LMA 1, although the prediction of right whales in these waters during the closure period relies on very low-percentage whale distribution models and prior area closures imposed by NOAA and its National Marine Fisheries Service (“NMFS”) through the Atlantic Large Whale Take Reduction Plan (“ALWTRP”) have relied on predictable whale aggregations in specific areas and seasons. Plaintiffs request a temporary restraining order or preliminary injunction setting aside the closure measure “unless and until NMFS issues a final rule that implements mitigation measures that are based on an evaluation of the effectiveness of existing regulations spatial data on the location of trap/pot gear, updated right whale distribution surveys, aerial surveillance and acoustic monitoring in the LMA 1 Restricted Area, reasonable alternatives proposed as part of the public comment process, and an analysis of potential triggering mechanisms to be used in connection with dynamic management of the LMA 1 Restricted Area.” Plaintiffs' Motion at 27-28.
The North Atlantic right whale is one of the most endangered species in the world. Total population is estimated to be somewhere around 368 individuals. The species has been assigned a potential biological removal (“PBR”) level of 0.8, meaning that the removal of, on average, more than 0.8 individuals annually threatens the species' ability to reach its optimal sustainable population level. Since 2019, ten mortality or serious injury events have been documented in U.S. and Canadian waters. Of all the large whales, only the right whale population consistently experiences takes in excess of its PBR on an annual basis.
The LMA 1 Restricted Area is a newly defined zone situated entirely within federal waters in the Gulf of Maine and marked out by the following coordinates:
This area is roughly 967 square miles and is in what is known as the “offshore” zone. The LMA 1 Restricted Area comprises but a part of the entire LMA 1. The larger LMA 1 encompasses essentially the entire coastal Maine lobster fishery. Viewing that larger fishery as a whole, some 1600 license holders have the right to set as many as 800 traps. The regulatory idea that lies at the root of NMFS's action in relation to the LMA 1 restricted zone is that the Maine fishery, given the number of lines it generates across the entire fishery, should contribute to the right whale conservation effort by adopting a variety of measures, including a limited seasonal closure in the LMA 1 Restricted Area.
The Defendants in this action stand behind an Atlantic States Marine Fisheries Commission formed under the auspices of the NMFS's Greater Atlantic Regional Fisheries Office (“GARFO”). Because GARFO licenses commercial fisheries that can, in the absence of regulation, jeopardize the continued existence of endangered or threatened species (for purposes of this action the North Atlantic right whale[3]), GARFO and/or one of its parent agencies owe(s) a duty under Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), to ensure that such fishing activity is conducted in a manner that is not likely to jeopardize the continued existence of any endangered species.[4]Part of the process set in motion under this statutory regime involved a request for “formal intra-service section 7 consultation” meant to provide a biological opinion on how to address the ESA Section 7 challenge. Endangered Species Act Section 7 Consultation Biological Opinion (May 27, 2021) (NMFS) (“BiOp”) at 7.[5] The BiOp is focused on “evaluating the effects from fishing activities (i.e., entanglement/bycatch) by vessels with federal permits in federal waters only.” Id. at 6.
According to NMFS, the reason for its request for consultation[6] and issuance of a BiOp relates to “new information” received in 2017 indicating that “right whale abundance has been in decline since 2010.” Id. at 5. This information “may reveal effects from the fisheries analyzed in the [prior] Biological Opinions that may not have been previously considered.” Id. NMFS also states that certain “reinitiation triggers” in the prior Biological Opinions have been exceeded in recent years. Id.
With regard to the North Atlantic right whale, the BiOp ultimately concludes with a finding that “the nature and magnitude of the proposed [regulatory] action's effects, …. including the implementation of the [North Atlantic Right Whale Conservation] Framework, is not likely to jeopardize [their] continued existence.” Id. 341. This finding, in turn, called for NMFS to issue an incidental take statement[7] setting forth the anticipated level of take of the right whale and reasonable and prudent measures to avoid and minimize the take going forward.
NMFS's consultation process involved, in part, “proposing [measures] as part of the Atlantic Large Whale Take Reduction Plan (“ALWTRP”) … designed to modify, specifically, the American lobster and Jonah crag trap/pot fisheries.” Id. at 6. The BiOp incorporates NMFS's North Atlantic Rights Whale Conservation Framework for Federal Fisheries in the Greater Atlantic Region , “to further reduce” mortalities and serious injuries to right whales. Id. at 7. NMFS describes its Framework as evidence of its “commitment to use its authorities to implement measures that are necessary for the recovery of right whales, while providing a phased approach and flexibility to the fishing industry.” Id. Like the ALWTRP, the Framework is informed not only by the ESA, but also by the Marine Mammal Protection Act, 16 U.S.C. § 1387. See BiOp at 7.
According to the BiOp, the Framework is an important initial consideration in NMFS's phased and flexible approach to modifying fishing industry standards for protection of right whales.[8] Id. In NMFS's words: “If gear and operational measures cannot reach the targets of the Conservation Framework, NMFS has the authority to implement closures (partial/complete or seasonal) to reduce risk, if needed.” Id. (emphasis added). The Framework is meant to be “adaptive” to allow “for revisions as additional information becomes available or should any of the assumptions require revisions.” Id.
In its Final Rule, issued in September, 2021, NMFS amends the ALWTRP to implement what is effectively a closure of the LMA 1 restricted zone before implementing gear and operational measures that it waits to implement in May of 2022.[9] Final Rule at 8 (ECF No. 1-2). The Final Rule suggests that NMFS's closure of the LMA 1 restricted zone is part of its effort to spread the burdens of the ALWTRP across jurisdictions regardless of whale migratory patterns and based, in part, on the development that a Maine delegation to the planning team (comprised of representatives of the Maine Department of Marine Resources and the Maine Lobstermen's Association) withdrew its support for a 50 percent line reduction measure inside LMA 1. Id. at 100.[10]
The gear and operational measures appear promising. These measures include “trawling up” (increasing the number of traps per trawl line, thereby reducing the number of VBR in the water column), the use of sinking ground line between the traps on the trawl, and the use of VBR with a “weak line” inserted along the length of the VBR so that a whale can break free of an entanglement.[11] BiOp at 9, 177; Final Rule at 13-15. These all appear to be reasonable gear modifications[12] that, importantly, the average license holders could meet.[13]
NMFS states that lobster fishing activity in the offshore zone tends to be most active in the fall and winter months due to the biological cycle of the American lobster. BiOp at 16. NMFS thus recognizes that its closure of the LMA 1 restricted zone to VBR-systems is perfectly timed to ruin a fishing season, at least for the substantial lot of license holders who work these grounds. But is the closure timed to protect right whales? The ALWTRP has been around...
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