Me. Lobstermen's Ass'n, Inc. v. Nat'l Marine Fisheries Serv.

Docket NumberCivil Action No. 21-2509 (JEB)
Decision Date08 September 2022
Citation626 F.Supp.3d 46
PartiesMAINE LOBSTERMEN'S ASSOCIATION, INC., Plaintiff, and State of Maine, Department of Marine Resources, Intervenor-Plaintiff, and Massachusetts Lobstermen's Association, Inc., Intervenor-Plaintiff, and District 4 Lodge of the International Association of Machinists and Aerospace Workers, Local Lodge 207, Intervenor-Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, and Conservation Law Foundation, et al., Intervenor-Defendants.
CourtU.S. District Court — District of Columbia

Jason T. Morgan, James Curtis Feldman, Pro Hac Vice, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, Jane C. Luxton, Lewis Brisbois Bisgaard & Smith LLP, Washington, DC, for Plaintiff.

Brian Ferrasci-O'Malley, Linda R. Larson, Nossaman LLP, Seattle, WA, Paul S. Weiland, Nossaman LLP, Irvine, CA, for

Intervenor-Plaintiff State of Maine Department of Marine Resources.

Daniel J. Cragg, Eckland & Blando, Minneapolis, MN, Karen Ellis Carr, Arent Fox LLP, Washington, DC, Nicholas Nesgos, Pro Hac Vice, Arent Fox LLP, Boston, MA, Samuel Peter Blatchley, Eckland & Blando LLP, Boston, MA, for Intervenor-Plaintiff Massachusetts Lobsterman's Association, Inc.

Alfred C. Frawley, IV, Pro Hac Vice, Thimi Robert Mina, McCloskey, Mina, Cunniff & Frawley LLC, Portland, ME, for Intervenor-Plaintiff District 4 Lodge of the International Association of Machinists and Aerospace Workers, Local Lodge 207.

Erica A. Fuller, Conservation Law Foundation, Boston, MA, Jane P. Davenport, Defenders of Wildlife, Washington, DC, Kristen Monsell, Center for Biological Diversity, Oakland, CA, for Intervenor-Defendants Conservation Law Foundation, Inc., Center for Biological Diversity, Defenders of Wildlife.

John B. Grosko, U.S. Department of Justice, Environment and Natural Resource Wildlife and Marine Resources Section, Washignton, DC, Taylor Mayhall, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

"Consider the Lobster," David Foster Wallace implored in an eponymous 2004 essay. In a variation on his theme, Plaintiffs today entreat the Court to consider the lobstermen. They do so as Defendant, the National Marine Fisheries Service, attempts a fraught balancing act: it seeks to protect the endangered North Atlantic right whale, while still allowing operation of the federal lobster fisheries that threaten the whale. In its latest foray, NMFS issued a Biological Opinion in 2021 that both set new targets for reducing right-whale mortality and also concluded that the fisheries' operation would not jeopardize the whales and so authorized them. Two months ago, in a suit brought by conservation groups, this Court invalidated the BiOp, holding that it violated two federal statutes by not being sufficiently protective of the right whale. Now Plaintiffs — two lobstering associations, a lobstermen's union, and the State of Maine — advance from the other side. Their suit contends that the same BiOp overstates the risks lobstering poses to the whale and consequently overregulates the industry. The parties, including conservation groups that have intervened on the side of Defendants, have now filed Cross-Motions for Summary Judgment.

Siding with the agency, the Court holds that the challenged portions of the BiOp survive under the deferential arbitrary-and-capricious standard of review. NMFS reasonably explained how it estimated the right-whale population and modeled that population into the future, drawing on what it rationally assessed was the best available data and submitting its methods for peer review. That is all that the Administrative Procedure Act requires. Neither the agency's BiOp, nor its Conservation Framework, nor its Final Rule implementing conservation measures was therefore arbitrary in the ways that Plaintiffs challenge. The Court will accordingly deny Plaintiffs' Motions for Summary Judgment and grant Defendants'.

I. Background

The Court in July canvassed the relevant background in great detail in Center for Biological Diversity v. Raimondo (CBD), No. 18-112, 610 F.Supp.3d 252 (D.D.C. July 8, 2022). It will here refresh some relevant particulars but directs interested readers to that Opinion for more context.

A. Statutory Framework

The dispute in this case derives principally from the Endangered Species Act, 16 U.S.C. §§ 1531-1544. Under the Act, federal agencies must ensure that their actions do not jeopardize designated endangered species. CBD, 610 F.Supp.3d at 261-62 (citing 16 U.S.C § 1536(a)(2)). When a proposed federal action would affect an endangered species, the agency proposing the action (the "action agency") must consult with an expert agency (the "consulting agency"). Id. (citing 50 C.F.R. § 402.14(e)). The consulting agency then issues a Biological Opinion, or BiOp, assessing the effects of the proposed action. Id. In this case, different divisions of NMFS served as the action and consulting agencies: its Sustainable Fisheries Division was the action agency, and its Protected Resources Division was the consulting agency. Id. 259-61; see also ECF No. 61 (Joint Appendix), Attach. 2 (Volume 2), at 183, 200 (BiOp 1660, 1677).

A BiOp can come in one of two flavors. A "jeopardy" BiOp concludes that the proposed action is "likely to jeopardize the continued existence of a listed species"; a "no-jeopardy" BiOp concludes that it is not. See 16 U.S.C. § 1536(a)(2). If the consulting agency issues a jeopardy BiOp, the action agency must either implement reasonable and prudent alternatives that the consulting agency describes, terminate the action altogether, or seek an exemption for the action. CBD, 610 F.Supp.3d at 261-62 (quoting United States Fish & Wildlife Serv. v. Sierra Club, Inc., — U.S. —, 141 S. Ct. 777, 784, 209 L.Ed.2d 78 (2021)). If the consulting agency instead issues a no-jeopardy BiOp, the proposed action may proceed. A no-jeopardy BiOp must (among other things) include an "Incidental Take Statement" identifying and authorizing the level of mortality and serious injury, called M/SI, that the action is expected to cause. Id. (citing 50 C.F.R. § 402.14(i)). In all events, and important for this case, the consulting agency must "use the best scientific and commercial data available" in its BiOp. See 16 U.S.C. § 1536(a)(2).

Also relevant is the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1421. That statute provides separate but related protections for marine mammals, two of which are pertinent here. First, the MMPA prevents killing protected mammals incident to fishing operations unless the M/SI anticipated from those fisheries will have a "negligible impact" on the species. See 16 U.S.C. § 1371(a)(5)(E)(i). Second, the Act requires the Secretary of Commerce (here, through NMFS) to impose a take-reduction plan for each endangered marine species that interacts with a commercial fishery; those plans, developed by take-reduction teams, aim to minimize M/SI of protected species that interact with federal fisheries. See 16 U.S.C. § 1387(f)(2); see also CBD, 610 F.Supp.3d at 258-61. NMFS implements and amends those take-reduction plans through rulemakings, resulting in promulgated Final Rules. See 86 Fed. Reg. 51,970 (Sept. 17, 2021) (Rule at issue here). In the short term, the MMPA requires that those reduction plans set the agency on track to reduce M/SI from commercial fishing, within six months of the Rule, to below a species' potential biological removal level (PBR) — a figure that identifies the maximum number of animals that may be killed while still allowing a population to remain stable. See 16 U.S.C. § 1387(f)(2); see also id. § 1362(20) (defining PBR and factors that produce it). In the longer term, the statute requires that the plans set the agency on track to reduce M/SI within five years of the Rule "to insignificant levels approaching a zero mortality and serious injury rate." Id. § 1387(f)(2).

B. Factual and Procedural History

The North Atlantic right whale has been listed as endangered for as long as the ESA has been law. CBD, 610 F.Supp.3d at 262-63. The two principal causes of right-whale deaths are vessel strikes and entanglement in fishing gear. Id. Over the past decade in particular, the leviathan's numbers have dwindled — as of 2019, the population was estimated at just 368 whales. Id. Due to those low numbers, the current PBR for the right whale sits at 0.8 M/SI per year. See 86 Fed. Reg. at 51,971. In other words, for the right-whale population to remain stable, humans must kill fewer than one right whale per year.

The present dispute arrives here with a long history, which the Court has detailed before and briefly recaps here. See generally CBD, 610 F.Supp.3d at 262-65. It began when NMFS's action agency — its Sustainable Fisheries Division — proposed an action that NMFS defined as both authorizing a series of federal fisheries, including the lobster fishery, and also implementing a Conservation Framework designed to reduce the fisheries' impact on right whales. See J.A. Vol. 2 at 540 (BiOp 2017) (defining action as "including the implementation of the Framework"); see also id. at 48, 49 (BiOp 229, 259) (letters on proposing Framework as part of action). In 2014, NMFS's consulting agency — its Protected Resources Division — issued a no-jeopardy BiOp authorizing that proposed action. A group of conservation plaintiffs — the Center for Biological Diversity, Defenders of Wildlife, and Conservation Law Foundation — challenged that BiOp in 2018, contending that it failed to include an Incidental Take Statement. Agreeing, this Court invalidated the BiOp in 2020 but stayed relief until May 31, 2021, in order to let NMFS complete the issuance of a new BiOp. CBD, 610 F.Supp.3d at 262-63 (citing Ctr. for Biological Diversity v. Ross, No. 18-112, 613 F.Supp.3d at 347-48 (D.D.C. Apr. 9, 2020); and Ctr. for Biological Diversity v. Ross, 480 F. Supp....

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