610 F.Supp.3d 252
D.D.C.2022Background
- North Atlantic right whales are endangered (~370–400 individuals) and face serious mortality/serious injury (M/SI) risk primarily from entanglement in vertical-line fishing gear used in lobster and crab (trap/pot) fisheries.
- NMFS issued a 2021 Biological Opinion (BiOp) finding the federal fisheries action "not likely to jeopardize" right whales, but projected continued M/SI (≈2.69/year in 2022, mostly from trap/pot gear) exceeding the species' PBR (~0.8/year) until late in the decade.
- The 2021 Incidental Take Statement (ITS) accompanying the BiOp authorized zero lethal take (while authorizing limited non-lethal take), despite NMFS not having made the MMPA §101(a)(5)(E) “negligible impact” finding required before authorizing M/SI of an endangered marine mammal.
- NMFS also promulgated a 2021 Final Rule amending the Atlantic Large Whale Take Reduction Plan (ALWTRP) with phased measures intended to reduce entanglements but projecting M/SI reductions only gradually over multiple phases.
- Plaintiffs (conservation groups) sued under the ESA, MMPA, and APA. The Court held the 2021 BiOp unlawful for issuing an ITS without the antecedent MMPA negligible-impact finding and held the 2021 Final Rule invalid for failing to meet the MMPA’s six-month reduction requirement for plan measures; remedy deferred pending further briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of ITS authorizing zero lethal take without first satisfying MMPA §101(a)(5)(E) negligible-impact finding | ITS is unlawful because ESA requires that any ITS for an endangered marine mammal be premised on MMPA authorization, including a negligible-impact finding | NMFS properly issued a zero-lethal-take ITS because it could not lawfully authorize lethal take under the MMPA and the ESA/ITS framework permits setting authorized take at zero | Court: ITS invalid — NMFS must satisfy the MMPA antecedent before issuing an ITS; issuing zero-lethal-take ITS to avoid making the MMPA finding is arbitrary and capricious |
| Discrepancy between projected lethal takes and ITS-authorized zero lethal take | The BiOp projects lethal takes will occur in early years; authorizing zero lethal take while anticipating deaths is inconsistent and unlawful | NMFS can authorize less than projected take (including zero) and can trigger reinitiation if any lethal take occurs; practical protection favors zero authorization | Court: Arbitrary and capricious to authorize zero lethal take while projecting M/SI that exceeds zero and PBR, because the plan does not ensure negligible impact or explain how fishery continues lawfully during reinitiation periods |
| Applicability of MMPA six-month reduction requirement (16 U.S.C. §1387(f)) to plan amendments | The six-month requirement applies to take-reduction plan amendments as well as initial plans; amendments must include measures expected to reduce M/SI below PBR within six months | The six-month timing applies only to the initial plan (not later amendments), so the 2021 amendment is not subject to that deadline; timing is aspirational not mandatory | Court: Six-month requirement applies to plan amendments; 2021 Final Rule failed to include measures expected to reduce M/SI below PBR within six months; Final Rule invalid |
| Nature of six-month requirement: mandatory duty or aspirational goal | Statutory text and structure impose a mandatory requirement for measures that the Secretary "expects will reduce" M/SI below PBR within six months | The statutory language merely states a "goal" and Congress used non-mandatory phrasing; practical/implementation ambiguity | Court: The six-month requirement in §1387(f)(5)(A) is more than aspirational and is a mandatory obligation for plans/amendments targeting stocks exceeding PBR |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for reviewing agency statutory interpretation)
- Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency action)
- Bennett v. Spear, 520 U.S. 154 (1997) (incidental take statement functions as permit/safe harbor under ESA)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (context on MMPA/ESA interactions cited for MMPA prohibition and exceptions)
- Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024 (9th Cir. 2005) (agency cannot avoid ESA obligations by citing conflicts with other statutes)
- Defenders of Wildlife v. Department of the Navy, 733 F.3d 1106 (11th Cir. 2013) (discussion of ITS and anticipated take correspondence)
- Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Service, 273 F.3d 1229 (9th Cir. 2001) (role of ITS as safe harbor and consultation mechanisms)
- Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011) (statutory construction principles and agency obligations under environmental statutes)