Center for Biological Diversity v. Ross

District Court, District of Columbia·Decided November 17, 2022·No. Civil Action No. 2018-0112·Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, et al.,

Plaintiffs, v. Civil Action No. 18-112 (JEB) GINA RAIMONDO, in her official capacity as Secretary of Commerce, et al.,

Defendants,

and

MASSACHUSETTS LOBSTERMEN’S ASSOCIATION, INC., et al.,

Defendant-Intervenors.

MEMORANDUM OPINION AND ORDER

Earlier this year, this Court issued a Memorandum Opinion that “h[e]ld the 2021

Biological Opinion and the 2021 Final Rule” issued by the National Marine Fisheries Service “to

be invalid” as they relate to the American lobster fishery. Ctr. for Biological Diversity v.

Raimondo, No. 18-112, 2022 WL 2643535, at *1 (D.D.C. July 8, 2022). Understanding the

substantial impact of that holding on both the endangered right whale and the lobster industry,

the Court ordered supplemental briefing on potential remedies. Id. at *20. With that phase of

the litigation now complete, the Court will mandate certain agency actions and stay its hand in

regard to others.

First, the easy part. Plaintiff conservation groups, Defendant NMFS, and Intervenor

lobstermen are largely on the same page with respect to NMFS’s 2021 Final Rule. They agree

1 (albeit with some Intervenor dissent) that the Rule should be remanded without vacatur to the

agency along with an Order requiring NMFS to issue a new Rule consistent with the Court’s

Opinion by December 9, 2024. Such Rule “will include measures designed to reduce the North

Atlantic right whale’s annual mortality and significant injury rate below its potential biological

removal level.” ECF No. 238 (Def. Motion for Oral Argument) at 3. The Court is pleased to

endorse this agreement and appreciates the parties’ good-faith efforts to bridge their differences

on this front.

The parties, unfortunately, do not reach consensus beyond this. To begin, they disagree

on whether the Court’s Opinion invalidated the entire BiOp as it relates to the lobster fishery or

only the Incidental Take Statement, its critical component. That Opinion clearly held the entire

BiOp “invalid” because it inextricably relied on an infirm ITS. See CBD, 2022 WL 2643535, at

*9; see also id. (holding BiOp “cannot stand”); id. at *11 (holding ITS’s failure meant that “the

BiOp cannot survive”). The Court does not here reconsider that holding.

More centrally, the parties dispute the conditions under which the Court should remand

the BiOp to the agency: Plaintiffs seek remand with vacatur, and NMFS and the Intervenors ask

for no vacatur. In Allied-Signal v. United States Nuclear Regulatory Commission, 988 F.2d 146

(D.C. Cir. 1993), the D.C. Circuit laid out the operative test for whether to vacate a deficient

agency action during remand. First, a court must consider “the seriousness of the order’s

deficiencies (and thus the extent of doubt whether the agency chose correctly).” Id. at 150

(quoting Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920

F.2d 960, 967 (D.C. Cir. 1990)). Second, it must analyze “the disruptive consequences” that

vacatur would engender. Id. at 150–51 (quoting Int’l Union, 920 F.2d at 967). “Because vacatur

2 is the default remedy, . . . defendants bear the burden to prove that vacatur is unnecessary.”

Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019).

Here, the two Allied-Signal factors point in opposite directions. The first weighs in favor

of vacatur. The Court’s task in considering this factor is to determine whether there is “a

significant possibility that the [agency] may find an adequate explanation for its actions” on

remand. Williston Basin Interstate Pipeline Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008).

Here, however, NMFS’s error clearly cannot be explained away on remand because “the defects

in the challenged [BiOp] go far beyond a mere failure in explanation.” Humane Soc’y of the

United States v. Jewell, 76 F. Supp. 3d 69, 137 (D.D.C. 2014); see also Ctr. for Biological

Diversity v. Ross, 480 F. Supp. 3d 236, 245 (D.D.C. 2020). The Court appreciates that NMFS is

hard at work developing a new Final Rule with the Atlantic Large Whale Take Reduction Team.

It nonetheless remains the case that the agency will need to produce a new BiOp to comply with

the demands of the Endangered Species Act and the Marine Mammal Protection Act, not just

clarify points it made in the old one.

The second factor, however, tilts the other way because of the considerable hardship such

an order would inflict on the lobster industry and the states of Maine and Massachusetts. Under

this factor, courts typically look to “significant harm to the public health or the environment” that

vacatur would cause, State of Wisconsin v. EPA, 938 F.3d 303, 336 (D.C. Cir. 2019), but, where

warranted, they may also consider “disrupt[ion] to the [affected] industries.” Am. Water Works

Ass’n v. EPA, 40 F.3d 1266, 1273 (D.C. Cir. 1994). Here, the disruption to the lobster industry

would be quite significant. NMFS has explained in several declarations the “massive

shutdowns” that vacatur, even if deferred somewhat, could inflict, a consequence this Court has

long sought to avoid. See ECF No. 228 (Def. Remedy Response) at 25–27. NMFS also adds

3 that a near-term vacatur would likely shift lobstering from federal to state waters, concentrating

vertical lines there and “substantially offsetting gains in risk reduction from shutting federal

fisheries.” Id. at 27. Although the parties dispute the extent to which such a shift would occur

and what damage to the whales it would cause, see ECF No. 237 (Pl. Remedy Reply) at 17–18, it

nonetheless appears to the Court that there are at least open questions concerning the species

benefits that would accompany these great costs to the lobstermen.

Adopting a more restrained position, the conservation groups in their Reply propose

vacatur with a two-year stay, which they believe offers sufficient time for a new BiOp. See Pl.

Reply at 16. NMFS rejoins that, while it is working hard to reduce right-whale mortality, such a

timeline is unrealistic inasmuch as a 2024 BiOp will have very little likelihood of including a

compliant ITS and negligible-impact determination (NID). This is because major technological

advances, such as widespread implementation of ropeless fishing gear, are unlikely before 2030.

See Def. Response at 5. Indeed, at the remedy hearing, the agency represented that in such a

circumstance it would turn its attention to state waters since it would be unable to issue a

compliant ITS and NID. The Court is thus presented with three options: 1) remand without

vacatur and wait until 2030, as NMFS proposes; 2) remand with vacatur, but stay vacatur for two

years, as Plaintiffs counsel; or 3) remand but hold the vacatur decision in abeyance. The Court

chooses the third option.

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