422 F.Supp.3d 12
D.D.C.2019Background
- NMFS’s Sustainable Fisheries Division (SFD) promulgated a 2018 Habitat Amendment that opened two long-standing groundfish-closure areas (Closed Area I and the Nantucket Lightship) to gillnet fishing.
- SFD’s December 2016 EIS for the Amendment expressly concluded the Amendment "may affect" the North Atlantic right whale, a species with ~400 individuals that is highly vulnerable to entanglement.
- SFD did not complete informal or formal Section 7 consultation with the Protected Resources Division (PRD) about the Amendment’s combined effects on right whales; instead it used segmented internal checklists and relied on older, separate biological opinions.
- Conservation Law Foundation (CLF) sued under Section 7(a)(2) of the Endangered Species Act (ESA) and Section 304(a)(1)(A) of the Magnuson‑Stevens Act (MSA), alleging failure to consult; CLF also claimed associational standing for its members.
- The Court found CLF had associational standing, held SFD violated the ESA (and therefore the MSA) by failing to consult on the Amendment as a whole, and granted a permanent injunction restoring the prior gillnet prohibitions in the two areas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (associational) | CLF: members have concrete recreational, professional, and emotional injuries traceable to the Amendment and redressable by relief | NMFS: CLF lacks Article III standing | Court: CLF has associational standing; member declarations and relaxed procedural‑injury standards satisfied injury, causation, redressability |
| ESA Section 7 consultation trigger | CLF: EIS conclusion that the Amendment "may affect" right whales required consultation with PRD on the Amendment as a whole | NMFS: SFD could make fishery‑by‑fishery / segmented determinations and need not consult | Court: "may affect" triggered mandatory consultation; SFD violated Section 7 by failing to consult on the Amendment as a whole |
| Segmentation / reliance on older biological opinions | CLF: segmenting the Amendment and relying on outdated opinions hid cumulative effects and is impermissible | NMFS: PRD concurrence on checklists and past consultations suffice; segmentation acceptable | Court: Segmentation is unlawful when it avoids consideration of the action’s combined effects; PRD memo and piecemeal checklists did not cure the defect |
| Remedy / MSA consequence | CLF: injunction restoring prior gillnet closures is appropriate to prevent irreparable harm to whales; MSA review duty violated too | NMFS: closures are not necessary; other mitigation tools exist; balance of hardships disfavors injunction | Court: Granted injunction; irreparable harm to endangered species and statutory priorities under ESA outweigh agency hardship; MSA violation flows from ESA violation |
Key Cases Cited
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (Congress gave endangered species highest priority under the ESA)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious review standards)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing and procedural‑injury principles)
- Center for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009) ("may affect" consultation trigger requires consultation)
- Sierra Club v. FERC, 827 F.3d 59 (D.C. Cir. 2016) (modified standing analysis for procedural injuries)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (standards for permanent injunction relief)
- Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (geographic‑specific observation supports standing)
- National Ass’n of Home Builders v. Norton, 415 F.3d 8 (D.C. Cir. 2005) (ESA claims reviewed under APA standards)