Ctr. for Biological Diversity v. Raimondo

1

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. GINA RAIMONDO, et al., Defendants, and MAINE LOBSTERMEN'S ASSOCIATION, INC., et al., Intervenor-Defendants.

Civil Action No. 18-112 (JEB)

United States District Court, District of Columbia

January 29, 2024

MEMORANDUM OPINION

JAMES E. BOASBERG, CHIEF JUDGE.

For six years now, Plaintiff conservation groups have battled with the National Marine Fisheries Service over regulations that they believe are woefully insufficient to save the dwindling North Atlantic right-whale population from death or injury caused by entanglement in lobster-fishing gear. Twice, this Court has awarded summary judgment in their favor based on clear procedural flaws in NMFS's biological opinions on this subject and substantive deficiencies in its right-whale conservation measures under the Endangered Species Act and Marine Mammal Protection Act. The tide has recently turned in the lobstermen's favor, however. Coming to their aid Congress has since enacted legislation declaring that NMFS's existing regulations are “sufficient” through 2028, while the agency explores novel technological solutions and crafts new rules potentially incorporating them. And the D.C. Circuit has since ruled in the lobstermen's favor in a related case vacating the agency's most recent biological opinion as being too fishing restrictive.

The question before the Court now is whether any of the conservation groups' claims survive these two developments. Insistent that they do not, both NMFS and DefendantIntervenor lobstermen have moved to dismiss the case as moot and to vacate seven of the Court's prior Opinions and Orders. While Plaintiffs vigorously oppose, they paddle against the current largely in vain. Finding that all claims in this case are now moot, the Court will grant the Motions to Dismiss but vacate only some of its previous rulings.

I. Background

As the Court has noted before, this case has washed up on its shores on many occasions. See Ctr. for Biological Diversity v. Raimondo, 610 F.Supp.3d 252, 263 (D.D.C. 2022) (CBD IV); see also Ctr. for Biological Diversity v. Raimondo, 2022 WL 17039193 (D.D.C. Nov. 17, 2022) (CBD V); Ctr. for Biological Diversity v. Ross, 480 F.Supp.3d 236 (D.D.C. 2020) (CBD III); Ctr. for Biological Diversity v. Ross, 613 F.Supp.3d 336 (D.D.C. 2020) (CBD II); Ctr. for Biological Diversity v. Ross, 349 F.Supp.3d 38 (D.D.C. 2018) (CBD I). The Court nevertheless recounts the relevant procedural history.

Conservation groups believe that NMFS has not sufficiently protected the endangered North Atlantic right whale in its regulation of the American-lobster and Jonah-crab fisheries, thereby violating numerous provisions of the Endangered Species Act, Marine Mammal Protection Act, and Administrative Procedure Act. Their initial Complaint, filed in January 2018, alleged four counts: (1) violation of Section 7(a)(2) of the ESA and APA by the issuance of an inadequate biological opinion (the 2014 BiOp) that improperly concluded that the continued operation of the American lobster fishery would not jeopardize the existence of the right whale (Count I); (2) violation of Section 7(a)(2) of the ESA via reliance on the 2014 BiOp and thereby failing to insure against jeopardy (Count II); (3) the causing of unauthorized “take” (i.e., death, injury, or other specified harm, see 16 U.S.C. § 1532(19)) of the right whale in violation of Section 9 of the ESA (Count III); and (4) the causing of unauthorized take of the whale in violation of similar provisions of the MMPA - 16 U.S.C. §§ 1371(a), 1372(a) - and the APA (Count IV). See ECF No. 1 (Compl.), ¶¶ 117-39.

This Court granted summary judgment in 2020 for the conservation groups on one part of the first count. See CBD II, 613 F.Supp.3d at 345, 348. It found, more specifically, that the 2014 BiOp violated the ESA because the statute and its regulations “require an [Incidental Take Statement] when the taking of an endangered species is anticipated”; “[t]ake was anticipated here, and NMFS did not produce an ITS.” Id. at 345. The Court later vacated the BiOp, but stayed the Order until May 31, 2021, to allow the agency time to complete its ongoing rulemaking, which the agency anticipated would result in a new BiOp and new right-whale conservation measures. See CBD III, 480 F.Supp.3d at 246, 256. The new BiOp and Final Rule were at last issued on May 27 and September 17, 2021 (respectively). See CBD IV, 610 F.Supp.3d at 263; 86 Fed.Reg. 51,970 (Sept. 17, 2021).

Still dissatisfied, Plaintiffs filed an Amended Complaint re-alleging Counts III and IV, and adding four more: (1) violation of the ESA and APA by issuing a substantively inadequate biological opinion (the 2021 BiOp) (Count V); (2) violation of the ESA and APA by a failure to include a lawful incidental take statement in that BiOp (Count VI); (3) violation of the MMPA and APA by the issuance of a final rule (2021 Final Rule) that “fails to contain measures to reduce right whale mortality and serious injury to [requisite] levels” within six months (Count VII); and (4) violation of the MMPA and APA by a failure to reduce right-whale mortality and serious injury to insignificant levels approaching zero (Count VIII). See ECF No. 170 (Am. Compl.), ¶¶ 13, 130-56; see also ECF No. 188-1 (Pl. SJ Mot.) at 13, 42 (requesting relief on claims III-VIII).

In July 2022, the Court once again granted summary judgment for the conservation groups - this time as to Counts IV, VI, and VII. See CBD IV, 610 F.Supp.3d 252. That decision rested on two key findings: first, that “NMFS violated the ESA by failing to satisfy the MMPA's ‘negligible impact' requirement before setting the authorized level of lethal take in its ITS,” and second, that it “breached the time requirements mandated by the MMPA in the 2021 Final Rule.” Id. at 257. In November of that year, the Court remanded the Final Rule to the agency without vacatur, and it also remanded the BiOp, but held the question of whether to vacate that BiOp in abeyance until December 2024, at which time the Court expected the agency would have issued a new final rule that would be more protective of the whale. See CBD V, 2022 WL 17039193. So matters stood until two intervening pro-lobstermen developments placed the continued enforceability of the Court's remedial Order (and the existence of a live controversy between the parties) in question.

First, just two months later, Congress enacted the Consolidated Appropriations Act of 2023, which effectively imposed a six-year pause on challenges to the sufficiency of existing right-whale conservation measures affecting the American-lobster fishery. It provided, in relevant part:

[F]or the period beginning on the date of enactment of this Act and ending on December 31, 2028, the Final Rule amending the regulations implementing the Atlantic Large Whale Take Reduction Plan (86 Fed.Reg. 51970) 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 Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

The National Marine Fisheries Service shall . . . promulgate new regulations for the American lobster and Jonah crab fisheries consistent with the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) that take effect by December 31, 2028.

Pub. L. No. 117-328, Division JJ, § 101(a), 136 Stat. 4459, 6089-90 (2022).

This provision was ostensibly a reaction to the Court's November 2022 Order, which Maine officials and members of Congress feared could shutter the state's lobster industry. See, e.g., 168 Cong. Rec. S9607 (daily ed. Dec. 20, 2022) (statement of Sen. Angus King) (“In November, a Federal court here in Washington issued a ruling . . . that effectively shuts down the entire Maine lobster fishery in 2 years.... [A] solution to this crisis is in the bill that we will be voting on[,] . . . [which provides] ¶ 6-year period that will give us time to develop the technology and to develop the data [that may point to] . . . different solutions.”).

Second, in June 2023, the D.C. Circuit handed the lobster interests another victory. In that related case, the Maine Lobstermen's Association, Maine Department of Marine Resources, and Massachusetts Lobstermen's Association (among other plaintiffs) had sued NMFS, alleging that the 2021 BiOp exaggerated the risks their fisheries posed to the right-whale population and that the 2021 Final Rule would decimate their business. See Maine Lobstermen's Ass'n, Inc. v. Nat'l Marine Fisheries Serv., 626 F.Supp.3d 46, 55 (D.D.C. 2022). Although this Court initially granted summary judgment for the Service, finding its regulations were reasonable, the Circuit reversed that Order, reasoning that the Service had improperly relied upon “worst-case scenarios or pessimistic assumptions” in determining whether the fishery “jeopardize[d]” the survival of the right whale. Maine Lobstermen's Ass'n, Inc. v. Nat'l Marine Fisheries Serv., 70 F.4th 582, 586 (D.C. Cir. 2023). It further directed this Court to enter summary judgment for the lobstermen plaintiffs on two counts; vacate the 2021 BiOp, as applied to the lobster and Jonah- crab fisheries (but not as to various other federal fisheries addressed in that document); and remand the 2021 Final Rule without vacatur for the agency to determine whether modifications are appropriate, Id. at 593-95, 602 - all of which were executed through the Court's October 30, 2023, Minute Order. Maine Lobstermen's Ass'n v. Nat'l Marine Fisheries Serv., No. 212509 (D.D.C.), Minute Order of Oct. 30, 2023.

The...