Civil Action No. 18-112 (JEB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
July 8, 2022
MEMORANDUM OPINION
The lives of our vast oceans may appear timeless. Indeed, at the end of Moby-Dick, “the great shroud of the sea rolled on as it rolled five thousand years ago.” Not so, however, for many creatures who live there, including its greatest leviathans. For example, just around 370 North Atlantic right whales remain in existence. For centuries, these whales were imperiled by excessive hunting, but today the greatest human-caused threat comes from entanglement in fishing gear.
Much of that gear is dropped into the ocean by crews fishing for lobster. Since the gear harms right whales, the
This Court has already once found a previous version of NMFS‘s BiOp invalid for lack of an ITS and sent the agency back to the drawing board. In 2021, the Service released a new BiOp addressing how lobster and crab fishing off the Atlantic coast would affect the dwindling right-whale population. In this most recent BiOp, NMFS concluded that the fisheries under review would not jeopardize the continued existence of the whale despite acknowledging the expected potential harm to the species. In reaching this determination, the Service included an ITS in which it authorized no lethal taking of the whales, even though it projected that, at least in the near future, nearly three whales could be killed annually. NMFS, in consultation with a variety of stakeholders, and as mandated by the
Three conservation groups have renewed their suit against the Department of Commerce, of which NMFS is a part. They argue that the new BiOp still does not satisfy the
Cognizant of the potential effects of this ruling on the lobster industry — and on the economies of Maine and Massachusetts — and given the highly complex statutory and regulatory environment that this case involves, the Court orders no remedy here. Instead, it will offer the parties the opportunity for further briefing to articulate alternatives the Court may select.
I. Background
The Court starts by laying out the framework of the two statutes most relevant to this case — the
Within this statutory scheme, NMFS plays an important role, as it is the agency within the Department of Commerce that “is responsible for the stewardship of the nation‘s ocean resources and their habitat.” NOAA FISHERIES, About Us, https://bit.ly/3Nd7HP1 (last accessed June 22, 2022). This work includes implementing fishery-management plans and working to protect endangered marine species. See Oceana, Inc. v. Raimondo, 35 F.4th 904, 906 (D.C. Cir. 2022). The American lobster and Jonah Crab fisheries fall under NMFS‘s auspices as the Service adopts and implements “regulations compatible with the interstate fishery management plans” required by statute. See ECF No. 216-3 (Joint Appendix Vol. 3 “JA3“) at ECF p. 80. This implementation process includes “a federal permitting process for fishermen harvesting lobster in federal waters,” which are waters over three nautical miles from the shore extending to around
A. Statutory Framework
1. Marine Mammal Protection Act
The
Although the
Section 118, meanwhile, imposes additional requirements governing the taking of marine mammals incidental to commercial fishing. For example, the Secretary must “develop and implement a take reduction plan designed to assist in the recovery or prevent the depletion of each strategic stock which interacts with [the
2. Endangered Species Act
The
The aim of this process is for the consulting agency to assess whether the action will violate section 7(a)(2)‘s prohibition on jeopardizing the continued existence of endangered and threatened species. The process culminates in a “biological opinion” to be issued by the “consulting agency,” not the agency proposing the action. See
In this case, the 2021 BiOp issued by the Protected Resources Division was a “no jeopardy” biological opinion. See JA3 at ECF p. 162. When a “no jeopardy” BiOp issues — or when there are reasonable and prudent alternatives to the proposed action — a project may proceed, but the BiOp must include what is known as an “incidental take statement” addressing certain elements of the project‘s potential to “take” a species. See
The information that an agency must produce regarding “take” is laid out below:
If after consultation under subsection (a)(2), the Secretary concludes that —
(A) the agency action will not violate such subsection [i.e., through a no-jeopardy BiOp], or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and
(C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 1371(a)(5) of [the
MMPA , discussed below];the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that —
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of [the
MMPA ] with regard to such taking, and(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be
complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).
This section creates two sets of requirements for the written incidental-take statement. First, there are antecedent conditions laid out in subsections (A) through (C) that must be satisfied before an agency can even issue an ITS. Second, there are certain elements that the ITS must include, which are articulated in
Overall, ITSs serve several functions. Since the
B. Factual and Procedural History
Well before the elaborate scheme of environmental protections just described was enacted, the North Atlantic right whale was so named because it was the right whale to hunt. The species has thus long been in peril. Indeed, it has been listed as endangered since 1970, predating even the passage of the
Although a variety of factors have precipitated this decline, “the two major known human causes of mortality are vessel strikes and entanglement in fishing gear.” JA3 at ECF p. 104. Between 2010 and 2018, there were 107 entanglements of the North Atlantic right whale, nearly half of which resulted in mortality or serious injury.
1. Case Background
As will be explained below, this case has washed up on this Court‘s shores several times. Plaintiffs — the Center for Biological Diversity, Defenders of Wildlife, and Conservation Law Foundation — first sued in January 2018 challenging the 2014 BiOp and subsequent agency action. See ECF No. 1 (Compl.). Although four claims were initially raised, the case was resolved on only one of them — namely, the fact that the 2014 BiOp did not include an ITS and included instead only a numerical trigger for how many right whales would need to be killed before
2. 2021 BiOp and Incidental Take Statement
On May 27, 2021, NMFS issued its new Biological Opinion. See JA3 at ECF p. 75. This 2021 BiOp authorized fishing in an “action area” encompassing federal waters in which “ten fisheries operate” between Maine and Key West, Florida. See JA3 at ECF p. 93;
Within the scope of the 2021 BiOp‘s analysis — in addition to the authorization of fisheries — was a proposal developed to reduce the lethal taking of North Atlantic right whales to near zero by 2030 under a four-part scheme. See Fed. Dfts. Cross-MSJ at 18. This proposal is known as the North Atlantic Right Whale Conservation Framework for Federal Fisheries in the Greater Atlantic Region (the Framework). See JA3 at ECF p. 86.
Even accounting for the effects of this Framework, however, NMFS still projects in the 2021 BiOp that the population of right whales will continue to decline during
Despite these findings, the 2021 BiOp nonetheless “conclude[s] that right whale entanglements due to the operation of the federal fisheries will not result in an appreciable reduction in the likelihood of survival and recovery of North Atlantic right whales compared to the no federal fishery scenario.” JA3 at ECF p. 162. As a result, it determined that “the proposed action, including the implementation of the Framework, is not likely to jeopardize the continued existence of North Atlantic right whales.”
NMFS does acknowledge, however, that “further efforts are necessary to reduce interactions between authorized federal fisheries and large whales in order to achieve the
3. 2021 Final Rule
In September 2021, NMFS released the Final Rule amending the Atlantic Large Whale Take Reduction Plan. See
The ALWTRP was issued in 1997 in fulfillment of NMFS‘s obligations under section 118 of the
This new Rule comes into play against the backdrop of the importance of lobster fishing to the economies of several states along the Atlantic seaboard. In particular, in coastal Maine, “the lobster supply chain has an economic impact . . . of $1 billion annually” and benefits numerous fishermen and their families. See Maine Cross-MSJ at 11; see also ECF No. 206 (Massachusetts Lobstermen‘s Association‘s Opposition (MALA Opp.)) at 9–11 (discussing economic and labor effects of trap/pot fishing on coastal Massachusetts communities).
C. Current Suit
Despite all of the efforts incorporated in the new 2021 BiOp and the Final Rule amending the ALWTRP, Plaintiffs remain dissatisfied. They thus filed an Amended Complaint in September 2021. See ECF No. 171 (Am. Compl.). In total, Plaintiffs now raise six claims: they believe that the final two counts from their original 2018 Complaint remain live, and they present four new causes of action in the Amended Complaint. For the sake of consistency with the parties, the original numbering of these claims is maintained. The extant counts are thus: III) the BiOp violates the
Finally, the parties involved remain nearly the same as in this case‘s earlier iterations. In addition to the Maine Lobstermen‘s Association and the Massachusetts Lobstermen‘s Association, who were both Defendant-Intervenors initially, the State of Maine and the Maine Lobstering Union have now intervened as well. See ECF Nos. 98 (Maine Lobstering Union‘s Motion to Intervene) and 172 (Maine‘s Motion to Intervene).
II. Legal Standard
Plaintiffs, Federal Defendants, the State of Maine, and the Maine Lobstermen‘s Association have all cross-moved for summary judgment. The
“[W]hen a party seeks review of agency action under the
The
When reviewing an agency‘s interpretation of a law it administers, a court must apply the principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Se. Ala. Med. Ctr. v. Sebelius, 572 F.3d 912, 916 (D.C. Cir. 2009). Under Chevron, the first step is to “examine the statute de novo, ‘employing traditional tools of statutory construction.‘” Nat‘l Ass‘n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) (quoting Chevron, 467 U.S. at 843 n.9); see also Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007) (court begins by “applying customary rules of statutory interpretation“). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43; see
If, however, “the statute is silent or ambiguous with respect to the specific issue,” Chevron, 467 U.S. at 843, the analysis proceeds to “determine the deference, if any, [the court] owe[s] the agency‘s interpretation of the statute.” Mount Royal Joint Venture, 477 F.3d at 754. Under this step, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843–44. Where a “legislative delegation to an agency on a particular question is implicit rather than explicit,”
Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 356 (D.C. Cir. 1993) (quoting Chevron, 467 U.S. at 844).
In this case, however, the Court can terminate its analysis at step one of Chevron, as the intent of Congress with respect to the relevant sections of the
III. Analysis
Despite the numerous claims and statutes at play, the Court need only reach two issues to resolve this case because those are enough to find the 2021 Final Rule and 2021 BiOp invalid. First, it addresses whether the incidental-take statement accompanying the 2021 BiOp appropriately authorized zero lethal take of the North Atlantic right whale despite not satisfying the relevant sections of the
A. Lethal Take
Plaintiffs’ allegations of infirmities in the lethal-take portion of the ITS accompanying the 2021 BiOp arise in two counts — one regarding the
1. Antecedent “negligible impact” requirement
The Court first anchors its reasoning more firmly in the statutory and regulatory requirements that underlie its conclusion. As described above, NMFS must “[f]ormulate a statement concerning incidental take, if such take is reasonably certain to occur,” and it has done so. See
at
Unable to satisfy the negligible-impact threshold, but nonetheless having been instructed to issue an ITS, NMFS found itself in rough waters. It decided to “authoriz[e] zero lethal take of these whales because the lethal incidental take of ESA-listed whales has not been authorized under
The Court agrees with the conservation groups. The
For now, it is clear that NMFS did not satisfy the antecedent “negligible impact” requirement, and it cannot make up for its failure to do so by setting the level of lethal take authorized at zero. See, e.g., Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005) (“[A]n agency cannot escape its obligation to comply with the ESA merely because it is bound to comply with another statute that has consistent, complementary objectives.“); see also CBD I, 2020 WL 1809465, at *9 (“[T]he ESA and accompanying regulations . . . require that the ITS find that any take resulting from the proposed agency action will . . . no[t] run afoul of
2. Discrepancy between anticipated take and authorized take
The flaws in NMFS‘s attempt to work around the
Defendants wave away this discrepancy on the ground that “the ESA does not preclude NMFS from authorizing less than the estimated amount of take in an ITS” and cite cases in which the level of lethal take authorized was zero. See Fed. Dfts. Cross-MSJ at 24 & n.10; see also ECF No. 197 (Maine Lobstermen‘s Union (MLU) Opp.) at 25-26. They are correct in the abstract that an agency certainly can issue an ITS that sets the rate of lethal take at zero. Pub. Emps. for Env‘t Resp. v. Beaudreau, 25 F. Supp. 3d 67, 115 n.26 (D.D.C. 2014); Town of Superior v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d 1087, 1143 (D. Colo. 2012). When that happens, however, it is in circumstances where the agency does not anticipate that any lethal take will in fact occur. See, e.g., Beaudreau, 25 F. Supp. 3d at 114, 115 n. 26 (explaining that NMFS must set an authorized lethal-take level even if it “determined that [incidental] take [of right whales] would not occur” and whale strike had never occurred in the area, but that “[t]o be sure, ‘[t]hat limit may be zero; that is, a valid [incidental take statement] may exempt no take.‘“) (alterations in original) (quoting Town of Superior v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d 1087, 1143 (D. Colo. 2012)); WildEarth Guardians v. U.S. Forest Serv., No. 19-203, 2020 WL 2239975, at *1, *4 (D. Idaho May 7, 2020) (setting lethal-take level at zero when there was “remote” possibility of lethal taking of grizzly bear); see also Pls. Reply/Opp. at 16-17.
Even outside the zero-lethal-take context, the level of take an ITS authorizes will usually roughly correspond to the amount of take actually anticipated. See, e.g., Mayo v. Jarvis, 177 F. Supp. 3d 91, 142 (D.D.C. 2016), amended, 203 F. Supp. 3d 31 (D.D.C. 2016) (allowing incidental take of 3-4 bears based on projection from past data that 1.5 bears might be taken in remaining action period); Oceana, Inc., 75 F. Supp. 3d at 493 (take limits for loggerhead turtles set by NMFS at the number of turtles estimated to be taken by dredge and trawl annually in BiOp); Defs. of Wildlife v. Dep‘t of Navy, 733 F.3d 1106, 1112-13 (11th Cir. 2013) (explaining that ESA amended to include an ITS that would “specify[] the amount or extent of anticipated take“). Indeed, the last time this case was before the Court, NMFS set the lethal-take “reinitiation trigger” intended to substitute for an ITS at 3.25 since the 2014 BiOp concluded that “the lobster fishery ha[d] the potential to seriously injure or kill an average of 3.25 right whales per year.” Compare ECF No. 88-6 (2020 Joint Appendix Volume 6) at ECF p. 83 (noting M/SI entanglement level), with id. at ECF p. 209 (setting reinitiation trigger). The regulations governing incidental-take statements also suggest a correspondence between the level of authorized take and the level of anticipated take. See
As a matter of pure practicality, this initially appears to make some sense. An ITS by regulation is a mechanism to ensure that consultations restart when “during the course of the action the amount or extent of incidental taking . . . is exceeded.”
The reinitiation-of-consultation requirement, however, is more limited than NMFS‘s briefing suggests. If a new consultation begins, the Service is not required to “issue a new Biological Opinion [arising from that consultation] before the agency action may continue.” Env‘t Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1076 (9th Cir. 2001); see Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, 175 n. 26 (D.D.C. 2014) (this Circuit does not require new BiOp to be issued pursuant to reinitiation of consultation before project may proceed, as Ninth Circuit caselaw on this “appear[s] in dicta and the relevant quotes are dropped in the legal standard sections with no explanation or citation whatsoever“); Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1253 (11th Cir. 2012) (cessation of action during consultation does not derive from ESA). Given that anticipated levels of M/SI take for right whales exceed zero in the coming years, it seems likely that whales will continue to be killed during the consultations.
Yet NMFS never specifies whether and under what conditions activity in the American lobster fishery would go forward during the reinitiation-of-consultation period. Merely requiring that consultations restart if “a single lethal take or pro-rated M/SI is assigned to the federal fisheries,” Fed. Dfts. Cross-MSJ at 12, cannot loose NMFS from the net of its statutory obligations under the
3. Judicial estoppel
Last, NMFS maintains that Plaintiffs are judicially estopped from arguing that the 2021 ITS unlawfully sets the incidental-lethal-take level at zero because “[i]n prior summary judgment filings, Plaintiffs urged the Court to find that NMFS should have done in the 2014 BiOp exactly what it did here” in so setting lethal take. See Fed. Dfts. Cross-MSJ at 26. NMFS further claims that this Court
“[J]udicial estoppel ‘is an equitable doctrine invoked by a court at its discretion,‘” with the intention of “prevent[ing] ‘improper use of judicial machinery‘” by letting a party adopt a position contrary to what it has argued in a previous case. New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting first Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990), then Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C. Cir. 1980)). Courts look to “at least three questions . . . in deciding whether to apply judicial estoppel: (1) Is a party‘s later position clearly inconsistent with its earlier position? (2) Has the party succeeded in persuading a court to accept that party‘s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled? [and] (3) Will the party seeking to assert an inconsistent position derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped?” Moses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010). In this case the answer to each of these questions is no for the reasons that follow. The Court thus finds that Plaintiffs are not foreclosed from opposing the zero-lethal-take ITS accompanying the 2021 BiOp.
This determination bears some elaboration. Considering the first of the three judicial-estoppel questions, Plaintiffs’ current position is not “clearly inconsistent” with the arguments that they made in their 2019 summary-judgment briefing. At that time, the conservation groups posited that the reinitiation trigger that NMFS included in lieu of an ITS in the 2014 BiOp was not equivalent to an ITS. In particular, they noted the discrepancy between the fact that the 2014 BiOp “stated that while no take was authorized [as it could not be under the MMPA], . . . the trigger would only be met if multiple right whales were killed or seriously injured.” ECF No. 83 (Pls. 2019 Reply/Opp.) at 16. They argued that setting the reinitiation trigger at 3.25 right whales annually was tantamount to authorizing incidental take. Id. at 16-17. In contrast, had NMFS really not authorized any incidental lethal take as claimed, it “could have set the trigger at zero, such that reinitiation of consultation would have been immediately triggered if a right whale was taken.” Id. at 17 (citing to Beaudreau, 25 F. Supp. 3d at 115 n.26 for proposition that trigger could be set at zero). Nowhere in that brief, however, did Plaintiffs argue that setting the reinitiation trigger at zero could supersede the requirement that, before issuing an ITS, NMFS find that the action would have no more than a “negligible impact” on the right-whale population. See, e.g., Pls. 2019 Reply/Opp. at 16 (maintaining argument that NMFS‘s only “course of action” was “to work internally to” satisfy
Plaintiffs’ current arguments do not contradict their earlier position. Now, they put forward two points with respect to the zero-lethal-take finding: 1) NMFS still has not “authorize[d] . . . incidental take pursuant to
This Court also did not “accept [Plaintiffs‘] earlier position” in its 2020 remedies Opinion. Moses, 606 F.3d at 798; cf. Fed. Dfts. Cross-MSJ at 27. The Court there addressed Beaudreau, 25 F. Supp. 3d 67, as an example of a case that “the agency cite[d] . . . in which courts declined to vacate a BiOp for ITS-related shortcomings.” CBD II, 480 F. Supp. 3d at 246 (emphasis added). Notably, the Court did not find Beaudreau persuasive because in that case there was in fact “little practical difference between having an ITS and not,” as “the agency had suggested that given the unlikelihood of any take, the acceptable level of incidental take might well be zero.” Id. The Court‘s statements can hardly be read as “adopting Plaintiffs’ position” that a “zero take ITS would have passed muster,” Fed. Dfts. Cross-MSJ at 27, since they do not endorse setting lethal take at zero in circumstances different from those in Beaudreau — such as those of the 2014 or 2021 BiOps, both of which “forecasted a considerable level of right-whale take.” CBD II, 480 F. Supp. 3d at 246. Additionally, the Court did not consider arguments about authorizing zero lethal take at all in its April 2020 Opinion finding the 2014 BiOp unlawful because it lacked an ITS entirely.
Finally, NMFS asserts that if Plaintiffs are not estopped, it “would be prejudiced because it took Plaintiffs’ views into account when drafting the 2021 BiOp.” Fed. Dfts Cross-MSJ at 27. Although the Court cannot know everything that NMFS may have considered in drafting the 2021 BiOp, nothing in the record indicates that the Service relied on the statements in Plaintiffs’ 2019 brief regarding zero-lethal-take ITSs. Indeed, the only record cite that NMFS provides to support this position has nothing to do with the lobster fishery. See Fed. Dfts. Cross-MSJ at 27; Fed. Dfts. Reply at 14 (both citing to JA3 at ECF p. 83). Although the administrative record reflects that NMFS was aware of various court decisions, including the deadline imposed in this Court‘s August 2020 remedies Opinion, there is no reference to a court decision or comment from Plaintiffs supporting a zero-lethal-take ITS for right whales. See, e.g., JA3 at ECF p. 12 (noting “court-ordered” May 31, 2021, deadline imposed in August 2020 opinion); id. at ECF pp. 56 & 85 (noting various court decisions in for-the-record feedback to comments received on draft 2021 BiOp). Plaintiffs, moreover, submitted comments on the draft BiOp on February 19, 2021, in which they criticized the document for “fail[ing] to include a proper incidental take statement” and observed that the draft BiOp in fact projected lethal take of right whales. See JA3 at ECF pp. 415, 460. There is thus nothing in the record to suggest that NMFS relied on Plaintiffs’ or this Court‘s prior statements in such a way that allowing Plaintiffs’ current arguments to go forward would impose an “unfair detriment on the opposing party.” Moses, 606 F.3d at 798. Defendants’ arguments, consequently, catch no wind.
B. Six-Month Time Requirement
In Count VII of their Amended Complaint, Plaintiffs also maintain that the 2021 Final Rule amending the ALWTRP violates the
The immediate goal of a take reduction plan for a strategic stock shall be to reduce, within 6 months of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to levels less than the potential biological removal level established for that stock under section 1386 of this title. The long-term goal of the plan shall be to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans.
Plaintiffs argue that the 2021 Rule flunks the six-month requirement because the level of M/SI incidents for North Atlantic right whales currently exceeds PBR and the BiOp and the Rule project that the number of M/SI incidents in federal fisheries will average above 2.6 annually through 2025, which continues to exceed the PBR level. See JA3 at ECF p. 146 (analyzing M/SI incident rate in Phase 1, which is the current rulemaking action);
1. Applicability to plan amendments
The Court examines first the question of whether the six-month time requirement applies only to the initial take-reduction plan or to subsequent amendments as well. This question, in turn, implicates whether Plaintiffs have challenged the correct agency action and, if not, whether they have lost their chance to do so.
NMFS maintains that the time requirement applies only to the initial plan and that this Court so held in a prior Opinion. See Fed. Dfts. Cross-MSJ at 31; see also MELA Cross-MSJ at 36-37. Defendants note that in section 118, “Congress clearly demarcated the two types of action: first, a plan, and, subsequently, plan amendments.” Fed. Dfts. Cross-MSJ at 31; compare
For starters, the Court is not bound by dicta from its August 2020 remedies Opinion. That Opinion stated that “it is not obvious to the Court that Plaintiffs’ cited statutory deadlines apply to amendments to existing take-reduction plans; it is possible to read them as applying only to the initial plan developed by a Team after it is constituted.” CBD II, 480 F. Supp. 3d at 248; see also Fed. Dfts. Cross-MSJ at 31 (noting this point). There, the Court was addressing the slightly different issue of whether “the agency‘s proposed timeline [was] out of compliance with the”
The amendment process for a take-reduction plan directs NMFS that it “shall amend the take reduction plan and implementing regulations as necessary to meet the requirements of this section,” meaning section 118. See
This reading is further supported by the treatment of take-reduction plans as evolving documents to which amendments are made over time. See, e.g.,
The fact that the original ALWTRP also included measures “expected to achieve the necessary take reductions within 6 months” does not undermine the conclusion that time requirements apply to plan amendments as well. See
Last, the Court addresses Defendants’ argument that Plaintiffs’ six-month claim is barred under the six-year statute of limitations for bringing an action against the United States. See
NMFS argues that Plaintiffs’ claims are time barred because the cause of action first began to accrue in 1997 when the ALWTRP was implemented, and the six years would have then elapsed in 2003. See Fed Dfts. Cross-MSJ at 32. In so contending, Defendants rely on Alaska Community Action on Toxics, a case in which the plaintiffs challenged the agency action of publishing a new schedule listing products eligible to be used for oil discharge. See 943 F. Supp. 2d at 100-01. The underlying decision that those plaintiffs were arguing against, however, was the agency‘s choice not to list “waters and quantities for use” regarding such oil-dispersant products. Id. at 104. That decision had been made decades earlier in a final rule. Id. (dismissing case as barred by statute of limitations given decision made 30 years prior).
If anything, the contrast between the Final Rule amending the ALWTRP and the routine publication of the product list in Alaska Community Action on Toxics shows why the better reading of
In a final effort, NMFS argues in its Reply that Plaintiffs have waived the statute-of-limitations point by failing to respond to Federal Defendants’ argument on this score. See Fed. Dfts. Reply at 15. A court can treat “specific arguments as conceded” when a “party fails to respond to arguments in opposition papers.” Dinkel v. MedStar Health, 880 F. Supp. 2d 49, 58 (D.D.C. 2012) (internal quotation marks and citations omitted). Here, however, Plaintiffs do briefly address this issue as it applies to the TRP amendments. See Pls. Reply/Opp. at 23. More importantly, they devote three pages of their Reply to addressing why the six-month timeline applies to the TRP amendments as well as to the original plan. This argument is closely intertwined with the statute-of-limitations issue since a finding for Plaintiffs on this issue vitiates a
2. Obligation vs. goal
Defendants also argue that section 118 “spoke advisedly” in creating a goal of reducing M/SI incidents below PBR within six months but did not mandate an absolute deadline. See Fed. Dfts. Cross-MSJ at 32-33; MELA Cross-MSJ. at 35-36; MALA Opp. at 22-23. In particular, NMFS objects that if “Congress meant to set a deadline, it would have stated ‘the plan shall reduce M/SI to the potential biological removal level’ by a particular date. It did not do so.” Fed. Dfts. Cross-MSJ at 33. Here, Plaintiffs and NMFS appear to talk past each other.
Defendants are correct that
Comparison with subsection 118(f)(5)(B) of the
Defendants’ other counterarguments also run aground. In particular, NMFS protests that “[i]t would be nonsensical for Congress to have created” an obligation to act within six months when that action has “nebulous ending points” since it is measured from the time it is “implemented,” which the
If the agency really thought that the undefined term “implementation” provided such “nebulous ending points,” then its own such statements would be meaningless. Further, even if a date is not set in stone against which to assess reductions in M/SI entanglements precisely six months after implementation, the relevant date is surely not several years after implementation, as the BiOp suggests would occur for the measures in the 2021 Final Rule. Nor is it the case that the implementation of the 2021 Final Rule is “not anticipated to conclude for at least ten years,” as the Massachusetts Lobstermen‘s Association
Next, although the Court agrees that of course “M/SI may fluctuate depending on many factors” over time and could thus fall above or below the PBR level, these fluctuations do not alter the meaning of sections 118(f)(2) or 118(f)(5). Cf. Fed. Dfts. Cross-MSJ at 33. The measures that the
This requirement is also a good deal more specific than the “goals” in cases that Defendant-Intervenors cite. In those, for example, Congress declared “a national goal [of]” preventing and remedying visibility impairments from manmade air pollution. Am. Corn Growers Ass‘n v. EPA, 291 F.3d 1, 10 (D.C. Cir. 2002) (discussing goal in
Having concluded that 1) the six-month deadline applies to plan amendments as well as to the ALWTRP itself, 2) that NMFS had to include measures expected to reduce M/SI to below PBR by that deadline, and 3) that NMFS did not do so, the Court finds that the 2021 Final Rule amending the ALWTRP is invalid.
* * *
So how does the ship‘s log now read? As explained in detail above, the crux of the problem is that the 2021 BiOp projects that in the coming years the American lobster fishery will continue to potentially kill and seriously injure North Atlantic right whales at over three times the sustainable rate. This is expected to occur even after the implementation of the 2021 Final Rule amending the ALWTRP and even though zero lethal take is authorized. For the reasons stated in this Opinion, the Court concludes that NMFS violated the
C. Remedy
The Court‘s findings at this juncture do not dictate that it must immediately shutter the American lobster fishery; indeed, it is cognizant of what a weighty blow that would inflict. Instead, the Court will order additional briefing as to potential remedies, which may include remand with or without vacatur. CBD I, 2020 WL 1809465, at *10 (doing same); see also Fed. Dfts. Cross-MSJ at 44-45 (requesting supplemental briefing). On such a remand, moreover, the Service may find that other measures exist to reduce lethal take, or that projected take is in fact lower than originally estimated. Remand thus need not be equivalent to a shutdown. For now, however, the Court reaches no determination on this question without the benefit of further briefing.
IV. Conclusion
For the foregoing reasons, the Court will grant Plaintiffs’ Motion for Summary Judgment and deny Defendants’ and Defendant-Intervenors’ corresponding Cross-Motions for Summary Judgment. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 8, 2022