40 F.4th 36
1st Cir.2022Background
- In 2021, NOAA Fisheries issued a regulation closing a 967-square-mile LMA 1 Restricted Area to buoy-line lobster fishing each year from October 18 to January 31 to reduce risk to the critically endangered North Atlantic right whale.
- The closure was based largely on a peer-reviewed Decision Support Tool (statistical model) predicting high co-occurrence of trap lines and potential whale presence that could cause lethal entanglements.
- Plaintiffs (a lobster union, two companies, and an individual fisherman) sued under the Administrative Procedure Act, arguing the Agency acted arbitrarily and capriciously by relying on thin modeling and not on concrete whale-location data; the district court granted a preliminary injunction.
- The First Circuit initially stayed that injunction (18 F.4th 38) after finding plaintiffs unlikely to succeed, explaining the Agency reasonably relied on modeling and available acoustic detections and that Congress weighs heavily in favor of species protection.
- On full briefing, the First Circuit concluded plaintiffs failed to show error in that analysis, rejected arguments that the Agency ignored data or should have gathered more (e.g., tagging), and vacated the district court’s preliminary injunction, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Was reliance on the Decision Support Tool (statistical modeling) arbitrary and capricious? | Model was "markedly thin" and insufficient to justify seasonal closure. | Peer-reviewed model and agency explanation were reasonable; model choices were permissible factfinding. | Held: Agency reasonably relied on model; not arbitrary and capricious. |
| 2. Did the Agency ignore existing data or fail to gather additional concrete data? | Agency ignored evidence showing whales winter elsewhere and could have gathered tagging/other data. | Agency acknowledged distribution changes, relied on acoustic detections, and could not safely or effectively resume tagging; statutory urgency justified action on best available data. | Held: No unreasonable ignoring of data; agency need not gather additional data absent statutory requirement. |
| 3. Did the closure conflict with Agency guidance or fail to consider less burdensome alternatives? | Closure contradicted principles to target predictable whale aggregations; rejected reasonable alternatives (hybrid or dynamic management). | Guiding principles were nonexclusive; agency considered and reasonably rejected alternatives due to limited benefit, resource limits, and lack of real-time data. | Held: Agency adequately explained choices; rejection of alternatives not arbitrary. |
| 4. Do the preliminary-injunction equities (irreparable harm, balance, public interest) favor plaintiffs? | Closure causes major financial hardship to lobster fishers; public interest favors fishing. | Loss of even one whale is irreversible; Congress prioritizes preventing extinction, tipping equities toward species protection. | Held: Equities and public interest favor protecting endangered whales; plaintiffs failed to show irreparable harm outweighs risk to species. |
Key Cases Cited
- Winter v. NRDC, 555 U.S. 7 (2008) (four-part test for preliminary injunction).
- Nken v. Holder, 556 U.S. 418 (2009) (stay factors parallel injunction factors).
- Dist. 4 Lodge of the Int'l Ass'n of Machinists v. Raimondo, 18 F.4th 38 (1st Cir. 2021) (stay order explaining agency reliance on modeling and equities).
- Village of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006) (agency may rely on best available evidence and update model inputs).
- Water Keeper Alliance v. Dep't of Defense, 271 F.3d 21 (1st Cir. 2001) (standard of review for preliminary injunction; abuse of discretion with de novo review of legal issues).
- Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000) (agency not required to gather additional data absent statutory mandate).
- Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) (Congressional weighting can favor endangered species in injunction equities).
- TVA v. Hill, 437 U.S. 153 (1978) (Congress's strong mandate to prevent species extinction).
- ANSYS, Inc. v. Computational Dynamics N. Am., Ltd., 595 F.3d 75 (1st Cir. 2010) (likelihood of success factor often given heavy weight).