United States Court of Appeals For the First Circuit
No. 24-1480
MASSACHUSETTS LOBSTERMEN'S ASSOCIATION, INC.,
Plaintiff, Appellee,
v.
EMILY MENASHES, Assistant Administrator, National Oceanic and Atmospheric Administration, in her official capacity; NATIONAL MARINE FISHERIES SERVICE; JEREMY PELTER, Secretary of the United States Department of Commerce, in his official capacity,*
Defendants, Appellants,
CONSERVATION LAW FOUNDATION, INC.; DEFENDERS OF WILDLIFE; WHALE AND DOLPHIN CONSERVATION SOCIETY,
Defendants. ________________
No. 24-1481
CONSERVATION LAW FOUNDATION, INC.; WHALE AND DOLPHIN CONSERVATION SOCIETY; DEFENDERS OF WILDLIFE,
NATIONAL MARINE FISHERIES SERVICE; JEREMY PELTER, Secretary of the United States Department of Commerce, in his official
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Emily Menashes has been substituted for Janet Coit as Acting Assistant Administrator, and Jeremy Pelter has been substituted for Gina M. Raimondo as Acting Secretary. capacity; EMILY MENASHES, Assistant Administrator, National Oceanic and Atmospheric Administration, in her official capacity,
Defendants. __________________
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Gelpí, Kayatta, and Aframe, Circuit Judges.
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.
January 30, 2025
- 2 - 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 Jonah crab trap fishing. See 89 Fed. Reg. 8333 (Feb. 7, 2024)
(the "Final Rule").1 The ban runs from February 1 to April 30 each
year. Id. at 8334. The NMFS issued the Final Rule to reduce the
risk of injury or death to North Atlantic right whales, an
endangered species that forages in the subject waters during these
months and can become entangled in the buoy lines.
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 Consolidated
Appropriations Act of 2023 ("CAA"). See Pub. L. No. 117-328,
Div. JJ, 126 Stat. 4459, 6089–93, § 101(a) (Dec. 29, 2022) [the
"rider"]. But we conclude that the Final Rule is permitted by an
1 Additional Appellants include Conservation Law Foundation, Inc., Defenders of Wildlife, and the Whale and Dolphin Conservation Society (collectively, the "conservation groups"). The conservation groups appeared only as amici in the district court, but the court permitted them to intervene as defendants after entering final judgment "solely for the purpose of prosecuting an appeal." The NMFS and the conservation groups filed separate appeals, which we consolidated and now address together.
- 3 - exception to that authorization contained in the same rider. Id.
§ 101(b). Accordingly, we reverse.
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 28 U.S.C.
§ 2107(b)(2), (3), the U.S. Solicitor General ("SG") did not
authorize the appeal until after the sixty-day deadline had
expired. MALA says that a Justice Department regulation requiring
that the SG "[d]etermin[e] whether, and to what extent, appeals
will be taken by the Government," see 28 C.F.R. § 0.20(b) (2025),
necessitates SG authorization within the sixty-day deadline.
Indeed, MALA goes further and says that the regulation must be
read to require the SG to control whether a notice of appeal is
filed at all. Thus, the argument runs, the NMFS's otherwise-
timely notice of appeal was a legal nullity because it had not yet
been approved by the SG when filed and was not approved by the SG
within the sixty-day period.
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
- 4 - (5th Cir. 1994); Hogg v. United States, 428 F.2d 274, 277–81 (6th
Cir. 1970). As those courts have explained, "nothing in 28 C.F.R.
§ 0.20(b) . . . requires the [SG] to have authorized the
prosecution of an appeal before the filing of the notice of
appeal." Rudisill, 55 F.4th at 886 (quoting Hogg, 428 F.2d at
280); see also Hill, 19 F.3d at 991 n.6 (adopting Hogg's reasoning
without further elaboration). Nor does the text of the regulation
impose any timing requirements on the SG deciding "whether, and to
what extent, appeals will be taken by the Government." 28 C.F.R.
§ 0.20(b) (2025).
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 is about to expire" and the
appropriate authorities have not yet decided whether to appeal.2
Department of Justice, Justice Manual § 2-2.132,
https://perma.cc/3AQU-LQ98. Thus, the AG, who is the source of
2 This provision refers to "the United States Attorney." At oral argument, MALA asserted that this language limits the provision to U.S. Attorneys (i.e., the officials who lead the ninety-four U.S. Attorneys' Offices). MALA did not, however, make this argument in its brief; the argument is thus waived. See Seafreeze Shoreside, Inc. v. U.S. Dep't of the Int., 123 F.4th 1, 16 n.4 (1st Cir. 2024) ("[P]arties must include within the four corners of their briefs any arguments they wish the court to consider . . . ." (citation omitted)).
- 5 - § 0.20, does not understand it to impose upon the SG the atextual
limitations that MALA suggests.
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 Fed. R. App. P. 42 (providing for the
dismissal of appeals in various scenarios), or otherwise
constitute "the appeal" for purposes of § 0.20.3
The timely notice of appeal filed in this case was thus
sufficient to establish our appellate jurisdiction. We therefore
turn to the merits.
3 MALA also argues that FEC v. NRA Political Victory Fund, in which the Supreme Court held that the Federal Election Commission lacks statutory authority to unilaterally file a petition for a writ of certiorari, requires a contrary outcome. See 513 U.S. 88, 98 (1994). But Rudisill rejected this argument, and we agree with Rudisill that the facts of NRA are sufficiently distinguishable from those present here. See 55 F.4th at 885.
- 6 - 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 Marine Mammal
Protection Act ("MMPA"), 16 U.S.C. ch. 31, which was enacted that
year. The MMPA makes it unlawful to "take" right whales in U.S.
waters or on the high seas except as authorized by treaty or
statute. Id. § 1372(a). "The term 'take' means to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal." Id. § 1362(13).
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. Id.
§ 1387(a). The principal statutory mechanism for authorizing such
an incidental taking while meeting the MMPA's conservation goals
is the "take reduction plan," which is "designed to assist in the
recovery or prevent the depletion of" statutorily protected
species that interact with commercial fisheries. Id.
§ 1387(f)(1). A take reduction plan seeks "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." Id.
- 7 - § 1387(f)(2). The "potential biological removal level" is "the
maximum number of animals, not including natural mortalities, that
may be removed from a marine mammal stock while allowing that stock
to reach or maintain its optimum sustainable population." Id.
§ 1362(20).
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 id.
§ 1387(f)(6)(C). The NMFS first promulgated a take reduction plan
for the right whale in 1997. See 62 Fed. Reg. 39,157 (July 22,
1997). The plan has since been modified several times.
Section 118 of the MMPA also provides the NMFS with
emergency rulemaking authority. 16 U.S.C. § 1387(g)(1)(A)(i).
The statute states that the NMFS "shall . . . prescribe emergency
regulations" for species with an established take reduction plan
"[i]f the [NMFS] finds that the incidental mortality and serious
injury of marine mammals from commercial fisheries is having, or
is likely to have, an immediate and significant adverse impact on
a stock or species." Id. § 1387(g)(1). Such emergency rules
"shall remain in effect for not more than 180 days or until the
end of the applicable commercial fishing season, whichever is
earlier." Id. § 1387(g)(3)(B). And, if the NMFS finds that
- 8 - mortality or significant injury from a commercial fishery "is
continuing to have an immediate and significant adverse impact on
a stock or species," it may extend the rule "for an additional
period of not more than 90 days or until reasons for the emergency
no longer exist, whichever is earlier." Id. § 1387(g)(4). Also,
if circumstances so warrant, the NMFS "shall" address the adverse
impact giving rise to the emergency rule by "approv[ing] and
implement[ing], on an expedited basis, any amendments to [a take
reduction] plan that are recommended by the take reduction team to
address such adverse impact." Id. § 1387(g)(1)(A)(ii).
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
- 9 - 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. Id. at 52,019–20. At about the same time,
amicus Massachusetts Division of Marine Fisheries independently
expanded north to the New Hampshire border an area of state waters
covered by a similar seasonal closure. See 322 Mass. Code Regs.
12.00 (2025).
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 area of federal waters that, because of its shape, is known
as "the Wedge." The Wedge is part of the corridor through which
right whales enter and exit Cape Cod Bay during their spring
migration. Surveys confirmed that lobstermen were making
increased use of the Wedge during the spring closure period and
that right whales were present in the Wedge in significant numbers
during that time. While some lobstermen fished in the Wedge during
this period, more used it to "wet store" their gear, including
their vertical buoy lines, so that these lines would be ready for
quick deployment when the surrounding waters opened for lobster
fishing on May 1.
- 10 - 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 § 1387(g)(1), (3)) [the "2022 emergency
rule"]. The NMFS tells us, without contradiction from MALA, that
this was the first emergency rule affecting the lobster and Jonah
crab fisheries that was issued under the MMPA or the Endangered
Species Act ("ESA"), 16 U.S.C. ch. 35, in more than a decade, and
the only such rule issued in 2022.
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 id.
§ 1387(f)(2). The district court granted the conservation groups
summary judgment on that issue; remanded without vacatur; and
ordered the NMFS to finalize a new, statutorily compliant rule by
December 9, 2024. Ctr. for Biological Diversity v. Raimondo,
- 11 - No. 18-cv-00012, 2022 WL 17039193, at *3 (D.D.C. Nov. 17, 2022),
vacated as moot on other grounds, 2024 WL 324103 (D.D.C. Jan. 29,
2024) ["CBD"].
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.
- 12 - B.
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."
- 13 - 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 § 1687(g)(4)) [the "2023 extension"].
In issuing the 2023 extension, the NMFS stated that,
notwithstanding any impediment that otherwise might be posed by
the authorizations in section 101(a) of the rider, the 2023
extension was "permitted pursuant to [the] exception at [section]
101(b)" because the 2022 emergency rule was "in place" on December
29, 2022, the date of the rider's enactment.
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.
- 14 - 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. Id.
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 two alleged that the scope of the Wedge closure worked by
the Final Rule is unlawfully expansive. The remaining counts
presented different theories, not relevant here, for why the court
should invalidate the Final Rule. MALA also moved for a temporary
restraining order, preliminary injunction, and administrative stay
with respect to counts one, two, and three.
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 Federal Rule of Civil Procedure 65(a)(2).
In doing so, the court explained that, if it were to agree that
the Final Rule conflicts with section 101(a) and does not fall
within section 101(b)'s exception, the case could be decided
- 15 - without any need for resolution of the additional claims set forth
in the remaining counts. The parties acquiesced in this plan.
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
4 Although this lawsuit ultimately involves only the legality of the Final Rule, the district court also opined that the 2023 extension of the 2022 emergency rule was unlawful. Mass. Lobstermen's Ass'n, 2024 WL 2194260, at *5. The court provided two reasons for this conclusion: first, that § 1387(g)(3)(B), which provides that emergency MMPA regulations "remain in effect . . . [only] until the end of the applicable commercial fishing season," precludes treating the 2023 extension as an "extension" of the 2022 emergency rule, given the temporal gap between the two; and second, that the NMFS's contrary interpretation of the MMPA was inconsistent with a litigation position the NMFS took seventeen years ago concerning the Magnuson-Stevens Fishery Conservation and Management Act. See id. at *5 & n.9 (citing Starbound, LLC v. Gutierrez, No. 07-cv-00910, 2008 WL 1752219, *4
- 16 - combined operation of sections 101(a) and (b) of the rider, the
NMFS is prohibited through December 31, 2028, from issuing any new
regulation under the MMPA or ESA "affecting lobster and Jonah crab"
fishing authorizations unless the regulation is, inter alia, "an[]
action taken to . . . make final an emergency rule that [was] in
place on the date of the [rider's] enactment," i.e., December 29,
2022.5 Id. at *2.
(W.D. Wash. Apr. 15, 2008) (noting the NMFS's argument that a challenge to a regulation imposed for the 2007 fishing season became moot once that season closed)). 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. 5 The conservation groups argue that section 101(a) does not in fact impose a temporary ban on regulations affecting the lobster and Jonah crab fisheries. We do not reach this argument, which the NMFS does not join, because, as explained infra, we conclude that the Final Rule falls within section 101(b)'s exception even if it were otherwise barred by section 101(a).
- 17 - The district court then considered and rejected the
NMFS's argument that its adoption of the Final Rule pursuant to
§ 1387(g)(1)(A)(ii) was permissible under section 101(b) because
it was, in substance, an action to make final the 2022 emergency
rule, which was "in place" on the rider's date of enactment. Id.
at *6. In the court's view, the statutory phrase "in place" is
synonymous with "in effect." See id. And the 2022 emergency rule,
which closed the Wedge to vertical buoy lines only from April 1 to
April 30, 2022, was no longer "in effect" on December 29, 2022,
because on that date, the regulation was not preventing lobster or
Jonah crab fishing in the Wedge. See id. The Final Rule was thus,
in the court's view, barred by section 101(a) and did not fall
within section 101(b)'s exception.6 See id. at *7.
These appeals followed.
6 The district court also suggested, in the alternative, that the NMFS should be estopped from arguing that the 2022 emergency rule was "in place" on December 29, 2022. See Mass. Lobstermen's Ass'n, 2024 WL 2194260, at *6. The court viewed this argument as inconsistent with the NMFS's assertion before the D.C. District Court that MALA's challenge to the 2023 extension became moot once the Wedge reopened for lobster fishing on May 1, 2023. See id. We see no inconsistency. In both cases, the NMFS maintained that § 1387(g)(4) allowed for only a single extension of the 2022 emergency rule, whereas § 1387(g)(1)(A)(ii) must serve as the basis for any further regulatory action necessitated by the persistence of the emergency beyond the expiration of an extension. In other words, the NMFS continues to stand by the foundation of its mootness argument, which is that § 1387(g)(4) could no longer serve as a source of authority for further regulatory extensions of the 2022 emergency rule once the single extension permitted by the statute had expired in 2023.
- 18 - 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 the American lobster and Jonah crab fisheries with
those of the endangered right whale following the D.C. District
Court's decision in CBD. See 168 Cong. Rec. S9591, 9607-08 (daily
ed. Dec. 20, 2022) (statement of Sen. Angus King) (describing the
statutory rider as a "compromise" designed to "pause the economic
- 19 - death sentence" to the lobster industry that would be occasioned
by implementation of the regulatory actions required by CBD). It
is against this backdrop that we decide whether the 2022 emergency
rule was "in place" on December 29, 2022.
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
- 20 - 2022 seasonal closure was not the only regulatory action for which
the 2022 emergency regulation could serve as a predicate. Under
§§ 1387(g)(1)(A)(ii), (g)(4), and as explicitly contemplated in
section 101(b), the findings underlying the issuance of an
emergency rule also can inform the extension and finalization of
such a rule.
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 § 1687(g)(4); and
(2) an eventual permanent closure of the Wedge to lobster/Jonah
crab fishing and fishing gear during the annual February–April
foraging season, which the NMFS accomplished under
§ 1687(g)(1)(A)(ii).
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
- 21 - conduct, authorizes future regulatory action.7 We think it
appropriate to describe such a law as being "in place" (or, again,
"in effect"). It therefore does no violence to section 101(b)'s
text to regard the 2022 emergency rule as being "in place" on
December 29, 2022.
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
7 Think, for example, of a duly enacted amendment to a tax law that authorizes future enforcement after some identified date. Or consider a duly enacted law whose regulatory effects are only triggered by a presidential declaration. See, e.g., National Emergencies Act, 50 U.S.C. ch. 34.
- 22 - 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.
8 MALA speculates that the drafters might have had in mind the possibility of a new emergency rule promulgated after Congress passed the statutory rider but before its "enactment," which occurred upon the President's signature less than a week later. We regard this theory as implausible. The record contains no evidence that any new emergency rules affecting the lobster or Jonah crab fisheries were under consideration at the time Congress passed the rider. 9 MALA contends that, by accepting the NMFS's reading of section 101(b), we are in substance deferring to an agency interpretation of an ambiguous statute in violation of Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412–13 (2024). Not so. Our holding that the 2022 emergency rule was "in place" for purposes of section 101(b) is based upon our own de novo reading of the statutory rider and involves no deference to the NMFS's construction.
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