Massachusetts Lobstermen's Association, Inc. v. Conservation Law FoundationMassachusetts Lobstermen's Association, Inc. v. Conservation Law Foundation
Christopher Anderson, with whom Todd Kim, Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, J. Brett Grosko, Taylor A. Mayhall, Andrew M. Bernie, and Sam Duggan, Attorney-Advisor, Office of General Counsel, National Oceanic and Atmospheric Administration, were on brief, for government appellants.
Andrea Joy Campbell, Attorney General for Massachusetts, Matthew Ireland, Assistant Attorney General, Energy and Environment Bureau, and James A. Sweeney, State Trial Counsel for Massachusetts Division of Marine Fisheries, amicus curiae.
Jane P. Davenport, with whom Daniel M. Franz, Defenders of Wildlife, Erica A. Fuller, and Conservation Law Foundation were on brief, for conservation group appellants.
Daniel J. Cragg, with whom Samuel P. Blatchley, Robert T. Dube Jr., and Eckland & Blando LLP were on brief, for appellee.
AFRAME, Circuit Judge. The principal issue in these appeals is whether Appellants National Marine Fisheries Service and two of its leaders (collectively, the “NMFS“) acted lawfully in issuing a final rule seasonally banning from certain federal waters off Massachusetts the vertical buoy lines used in lobster and
Appellee Massachusetts Lobstermen‘s Association, Inc. (“MALA“) persuaded the district court that the Final Rule conflicts with a temporary statutory authorization for lobster and Jonah crab fishing contained in a rider to the
I.
Before reaching the issue of statutory interpretation described above, we address our appellate jurisdiction. MALA contends that we must dismiss the NMFS‘s appeal because, although U.S. Department of Justice attorneys filed a notice of appeal within the applicable sixty-day period, see
We join the three courts of appeals that have rejected variations of this argument. See Rudisill v. McDonough, 55 F.4th 879, 884-86 (Fed. Cir. 2022) (en banc), rev‘d on other grounds, 601 U.S. 294 (2024); United States v. Hill, 19 F.3d 984, 991 n.6 (5th Cir. 1994); Hogg v. United States, 428 F.2d 274, 277-81 (6th Cir. 1970). As those courts have explained, “nothing in
Indeed, the Attorney General (“AG“) has directed attorneys who are responsible for cases in trial courts to file “protective” notices of appeal, such as the one filed here, “to preserve the government‘s right to appeal” in circumstances where “the time for appeal or cross-appeal
MALA premises its contrary argument on a formalistic assertion that the determination of “whether an appeal will be taken” cannot be separated from deciding to file a notice of appeal. MALA elaborates: “The filing of a notice of appeal is a necessary and triggering component of an appeal, and not a ‘separate act’ from the determination of whether the government may bring an appeal.” But this description defies reality. The filing of a notice of appeal is a procedural step that both invokes an appeals court‘s jurisdiction and preserves a party‘s right to seek appellate review of an adverse judgment. It does not, however, obligate the filing party to pursue the appeal to judgment (or even to briefing), see
The timely notice of appeal filed in this case was thus sufficient to establish our appellate jurisdiction. We therefore turn to the merits.
II.
A.
The federal government designated the right whale as endangered in 1970, 35 Fed. Reg. 18,319, 18,320 (Dec. 2, 1970), and, since 1972, it has been protected by the
Section 118 of the MMPA authorizes the “incidental taking” of marine mammals during commercial fishing operations conducted in accord with the requirements of that section.
Take reduction plans, and amendments to such plans, are developed by the NMFS, as the Secretary of Commerce‘s designee, in consultation with “take reduction teams” comprising individuals with relevant scientific expertise concerning the marine mammals in question or the operation of commercial fisheries. See
Section 118 of the MMPA also provides the NMFS with emergency rulemaking authority.
The right whale remains highly endangered, and its population is declining. A 2022 study estimates that there are approximately 356 remaining right whales, of which fewer than 100 are breeding females. According to the NMFS, the steep decline results from, inter alia, human-caused mortality from entanglements in fishing gear and vessel strikes in both U.S. and Canadian waters.
In late 2017, the NMFS began to address the right whale population decline by informing the take reduction team that it was necessary to amend the plan. Following study and consultation with the team, in 2021, the NMFS imposed new rules on the lobster and Jonah crab fisheries to reduce entanglement risks to right whales. 86 Fed. Reg. 51,970 (Sept. 17, 2021) [the “2021 Take Reduction Plan Amendment“]. The 2021 Take Reduction Plan Amendment, inter alia, expanded the boundaries of an area of federal waters, known as the “Massachusetts Restricted Area,” which is seasonally closed to vertical buoy lines each year from February 1 to April 30.
In early 2022, the Massachusetts Division of Marine Fisheries alerted the NMFS that these two adjustments to the geographic scope of the seasonally closed federal and state waters had inadvertently left unprotected an approximately 200-nautical-mile
The NMFS determined that the significant presence of right whales in the Wedge during the spring closure period, combined with the high density of vertical buoy lines observed in the Wedge, substantially increased the risk of entanglements. Therefore, on March 2, 2022, the NMFS issued an emergency rule closing the Wedge to vertical buoy lines for the remainder of that spring season (through April 30, 2022). 87 Fed. Reg. 11,590 (Mar. 2, 2022) (relying on
Meanwhile, interested parties had filed two separate lawsuits in the U.S. District Court for the District of Columbia challenging the 2021 Take Reduction Plan Amendment from different directions. In the first suit, conservation groups alleged, inter alia, that the Amendment was inadequate under the MMPA because it would not reduce right whale mortality and serious injuries below the potential biological removal level within six months. See
The second suit was filed by the State of Maine and lobster industry associations, including MALA. These plaintiffs alleged, inter alia, that the 2021 Take Reduction Plan Amendment was arbitrary and capricious because the NMFS had overestimated the impact of the lobster fishery on right whales by relying on inappropriate assumptions. The district court upheld the Amendment against that challenge. Me. Lobstermen‘s Ass‘n v. NMFS, 626 F. Supp. 3d 46, 61, 69 (D.D.C. 2022). But the D.C. Circuit reversed, holding that a biological opinion informing the NMFS‘s analysis, which relied on worst-case scenarios, was inconsistent with the ESA‘s requirements. See 70 F.4th 582, 600 (D.C. Cir. 2023). The D.C. Circuit remanded to the district court without vacating the rule, observing that it was “not convinced the error claimed by the lobstermen is fatal to the rule.” Id.
Following the CBD remand order, and while the Maine Lobstermen‘s appeal was pending, the NMFS reconvened the take reduction team so that it could recommend additional measures to comply with the timetable specified in the CBD remand. The team made some recommendations but, before the NMFS could propose new take reduction plan amendments, Congress intervened with the rider, the meaning of which we consider in these appeals.
The rider contains three parts. The first part of the rider is found in title I, section 101, and sets forth both a temporary authorization for lobster and Jonah crab fishing, section 101(a), and an exception to that authorization, section 101(b):
(a) IN GENERAL. -- Notwithstanding any other provision of law except as provided in subsection (b), for the period beginning on the date of enactment of this Act and ending on December 31, 2028, the [2021 Take Reduction Plan Amendment] shall be deemed sufficient to ensure that the continued Federal and State authorizations of the American lobster and Jonah crab fisheries are in full compliance with the [MMPA and ESA]. . . .
(b) EXCEPTION. -- The provisions of subsection (a) shall not apply to an existing emergency rule, or any action taken to extend or make final an emergency rule that is in place on the date of enactment of this Act, affecting lobster and Jonah crab.
The second part is found in title II, sections 201-203, which create a grant program to support “research to identify, deploy, or test innovative gear technologies,” subsidize their acquisition by fisheries participants, and authorize appropriations of up to $50 million annually between 2023 and 2032. The final part is found in title III, section 301, which directs the NMFS to conduct a plankton survey and to prioritize the collection of plankton samples and data that “inform the conservation of North Atlantic right whales.”
The rider‘s effective date was December 29, 2022. About a month later, the NMFS announced that it would be extending the 2022 emergency rule to close the Wedge to vertical buoy lines from February 1, 2023, through April 30, 2023. 88 Fed. Reg. 7362 (Feb. 3, 2023) (relying on
On February 1, 2023, MALA filed a lawsuit in the U.S. District Court for the District of Columbia seeking to enjoin the 2023 extension on the ground that it violated section 101(a). Mass. Lobstermen‘s Ass‘n v. NMFS, No. 23-cv-00293, 2023 WL 3231450, at *2 (D.D.C. May 3, 2023). The district court denied provisional relief. Id. Subsequently, after the Wedge reopened to vertical buoy lines on May 1, 2023, the NMFS successfully moved to dismiss the case as moot. Id. at *1.
In September 2023, the NMFS proposed finalizing the 2022 emergency rule. 88 Fed. Reg. 63,917 (Sept. 18, 2023). After receiving and responding to public comments, in February 2024, the NMFS issued the Final Rule amending the 2021 Take Reduction Plan to incorporate the Wedge into the Massachusetts Restricted Area. 89 Fed. Reg. 8333 (Feb. 7, 2024). The Final Rule thus closes the Wedge to vertical buoy lines from February 1 through April 30 on an annual basis.
On February 9, 2024, MALA sued the NMFS in the U.S. District Court for the District of Massachusetts under the MMPA and CAA, among other laws. The complaint contained seven counts. Count one alleged that the Final Rule (1) conflicts with the temporary authorizations of the American lobster and Jonah crab fisheries contained in section 101(a) of the rider, and (2) does not fall within section 101(b)‘s exception to that provision. Count
On March 7, 2024, the district court held a hearing on MALA‘s motion. At that hearing, the court expressed its intention to address only the purely legal issues raised in counts one and two, on which it would consolidate MALA‘s motion with a trial on the merits pursuant to
One week later, on March 14, 2024, the district court held a trial on the purely legal issues raised in counts one and two, at the conclusion of which it ruled in MALA‘s favor on count one and declined to address count two. The next day, the court entered a final declaratory judgment holding the Final Rule “void and unenforceable” under the rider and effectively dismissed the remaining counts of the complaint. On April 16, 2024, the court issued a memorandum of decision containing findings of fact and rulings of law that explained its judgment. Mass. Lobstermen‘s Ass‘n v. NMFS, No. 24-cv-10332, 2024 WL 2194260 (D. Mass. Apr. 16, 2024).
Our principal concern is with the portion of the district court‘s analysis that addressed the impact of the rider on the Final Rule.4 The court started from the premise that, per the
combined operation
The district court then considered and rejected the NMFS‘s argument that its adoption of the Final Rule pursuant to
These appeals followed.
III.
The NMFS and conservation groups argue that the district court erred in concluding that, for purposes of section 101(b) of the rider, the 2022 emergency rule was not “in place” on December 29, 2022 -- when the rider became law. They assert that a better reading of the statute‘s text, as informed by context and the consequences of a contrary reading, should yield a conclusion that the 2022 emergency rule was “in place” on that date. We consider this argument de novo and agree. See Mundell v. Acadia Hosp. Corp., 92 F.4th 1, 5-6 (1st Cir. 2024) (“The interpretation of a statute . . . , which presents a purely legal question, is . . . subject to de novo review.“).
We begin by observing that these appeals do not ask us to interpret a broadly applicable statute designed to address future controversies involving unknown parties and facts. Rather, as clearly implied by the statute‘s facially targeted text and its consistent history, Congress enacted the rider to address the specific, ongoing series of disputes among the parties to these appeals, and others similarly situated, about how to balance the interests of
MALA contends, and the district court held, that the statutory term “in place” is synonymous with the colloquial phrase “in effect,” and that it therefore cannot be understood as anything other than a requirement that an emergency Wedge closure be in place (or in effect) on December 29, 2022, for the exception described in section 101(b) to apply. Mass. Lobstermen‘s Ass‘n, 2024 WL 2194260, at *6. In other words, the district court interpreted “in place” to impose a requirement that, on December 29, 2022, the 2022 emergency rule be actively preventing lobster and crab fishermen from operating in the Wedge. See id. We assume for the sake of argument that “in place” means “in effect,” at least for purposes of section 101(b). But even so, we disagree with MALA‘s position and the court‘s conclusion because this term does not require the 2022 emergency rule to have been preventing fishing in the Wedge on the operative date.
As a textual matter, the section 101(b) exception does not require that an actual Wedge closure occasioned by an emergency rule be “in place” on the enactment date; it requires only that an “existing emergency rule” be in place. The operative question then is, “in place” for what purpose? Enforcement of the Wedge‘s 2022 seasonal closure was not the only regulatory action for which the 2022 emergency regulation could serve as a predicate. Under
And here, they did so. The same threat to the right whale described in the 2022 emergency rule findings persisted beyond the 2022 foraging season and therefore, per the MMPA, required additional regulatory actions: (1) the closure of the Wedge to lobster/Jonah crab fishing and fishing gear during the spring 2023 foraging season, which the NMFS accomplished through an extension of the 2022 emergency rule under
The fact that, on December 29, 2022, an aspect of the 2022 emergency rule still could serve as a source of authority for these future regulatory actions means that the rule was not a dead letter on that date. This was not akin to a situation where a law, although not formally repealed, has lost its authority, is entirely ineffectual, or is defunct. There are myriad situations where a duly enacted law, although not presently restricting conduct, authorizes future regulatory action.7 We think it appropriate to describe such a law as being
We find support for concluding that the 2022 emergency rule was in place on December 29, 2022, in the consequences of reaching a contrary conclusion. As previously noted, the 2022 emergency rule was the first emergency rule affecting the lobster and Jonah crab fisheries that was issued under the MMPA or the ESA in more than a decade, and the only such rule issued in 2022. It is therefore likely, as we read the record, that the drafters of section 101(b) had the 2022 emergency rule in mind when writing that the restrictions imposed by section 101(a) “[did] not apply to an existing emergency rule, or any action taken to extend or make final an emergency rule that is in place on [December 29, 2022] affecting lobster and Jonah crab.” Moreover, if the 2022 emergency rule is not regarded as having been “in place” on December 29, 2022, no other rule could possibly have come within the exception specified in section 101(b), rendering it a nullity ab initio.8 Courts are to avoid interpretations of statutes that have this effect, see Nielsen v. Preap, 586 U.S. 392, 414 (2019), especially when doing so renders entire statutory subsections inoperative, see Pulsifer v. United States, 601 U.S. 124, 143 (2024).9
IV.
For the reasons stated, we have jurisdiction to entertain the NMFS‘s appeal and conclude that the Final Rule was lawful, and may be enforced, under the exception contained in section 101(b) of the rider. Accordingly, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
So ordered.
Notes
We disagree with the district court‘s conclusion that the 2023 extension was unlawful. The court‘s reasoning proceeded from an erroneous premise: that the Wedge closure worked by the 2022 emergency rule was a regulatory limitation imposed for the duration of a “commercial fishing season.” Mass. Lobstermen‘s Ass‘n, 2024 WL 2194260 at *5 n.9. It was not. Moreover, and more generally, there need not be unbroken temporal continuity between a period in which a regulatory prohibition is in place and a lawful “extension” of that prohibition. See HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass‘n, 594 U.S. 382, 388-96 (2021) (holding that, in certain contexts, a regulatory exemption can be “extended” notwithstanding a lack of temporal continuity between the initial exemption and its extension). Here, where the same emergency prompted the 2022 emergency rule and 2023 extension, and where the temporal gap between the closures was tied to the absence of right whales in the Wedge outside of the February-April foraging season, the NMFS sensibly regarded the 2023 extension as an MMPA-compliant extension of the 2022 emergency rule.