Me. Lobstermen's Ass'n v. Nat'l Marine Fisheries Serv.

70 F.4th 582

MAINE LOBSTERMEN'S ASSOCIATION, AppellantState of Maine Department of Marine Resources, et al., Appellant-Intervenors v. NATIONAL MARINE FISHERIES SERVICE, et al., Appellees

No. 22-5238

Consolidated with 22-5244

Consolidated with 22-5245

Consolidated with 22-5246

United States Court of Appeals, District of Columbia Circuit

Argued February 24, 2023

Decided June 16, 2023

Appeals from the United States District Court for the District of Columbia (No. 1:21-cv-02509)

Paul D. Clement argued the cause for appellant Maine Lobstermen's Association. With him on the briefs were Mary Anne Mason, Jane C. Luxton, James Y. Xi, Ryan Steen, and Jason Morgan.

Paul S. Weiland and Brian Ferrasci-O'Malley were on the briefs for intervenor-appellant State of Maine Department of Marine Resources.

Alfred C. Frawley IV and Thimi R. Mina were on the briefs for intervenor-appellant District 4 Lodge of the International Association of Machinists and Aerospace Workers, Local Lodge 207.

Samuel P. Blatchley was on the briefs for intervenor-appellant Massachusetts Lobstermen's Association.

H. Christopher Bartolomucci was on the brief for amicus curiae Maine State Chamber of Commerce in support of appellants.

John M. Formella, Attorney General, Office of the Attorney General for the State of New Hampshire, and Christopher G. Aslin, Senior Assistant Attorney General, were on the brief for amicus curiae State of New Hampshire in support of appellants.

Sommer H. Engels, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief were Todd Kim, Assistant Attorney General, and Andrew C. Mergen, Rachel Heron, and J. Brett Grosko, Attorneys.

Kristen Monsell argued the cause for intervenor-appellees Conservation Law Foundation, et al. With her on the brief were Erica A. Fuller and Jane P. Davenport.

Before: Katsas and Rao, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Ginsburg, Senior Circuit Judge:

The National Marine Fisheries Service licenses fisheries in federal waters. In doing so, the Service must comply with the Endangered Species Act (ESA). That Act requires the Service to prepare an "opinion," commonly known as a biological opinion, "detailing how the [fishery] affects" any endangered or threatened species. 16 U.S.C. § 1536(b)(3)(A). Using "the best scientific and commercial data available," the Service's opinion must determine whether the federal fishery is "not likely" to jeopardize the survival of a protected species. Id. § 1536(a)(2).

In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the "benefit of the doubt" to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is "likely." The Service's role as an expert is undermined, not furthered, when it distorts that scientific judgment by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.

I. Factual and Regulatory Background

This case arises from the Service's efforts to protect the North Atlantic right whale from mankind in general, and lobstermen in particular. We begin by providing some background.

A. The North Atlantic Right Whale

The North Atlantic right whale is distinguished by an enormous mouth, a black stocky body, and the lack of a dorsal fin. It feeds by "taking in huge drafts of water filled with small copepods, krill, and other zooplankton." Eric Jay Dolin, Leviathan: The History of Whaling in America 21 (2007).

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"Right whales are migratory mammals." Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 915 (D.C. Cir. 2008). The whale's range includes the coastal waters of the eastern United States and Canada, but it occasionally wanders as far as Iceland and Norway. Although the whale's range is broad, the Service has designated its "critical habitat," see 16 U.S.C. § 1532(5)(A), as the whale's traditional foraging grounds in the Gulf of Maine and the Georges Bank, and its calving grounds in the warm waters of the southeastern U.S. 81 Fed. Reg. 4838 (2016), codified at 50 C.F.R. § 226.203.

The North Atlantic right whale has been listed as endangered for almost as long as the Government has kept a list. See 35 Fed. Reg. 18,319, 18,320 (1970). For several years, the whale population recovered slowly, peaking at almost 500 in 2011. Its recovery has since stalled, however; a recent Service assessment puts the number of right whales left at only 368. See North Atlantic Right Whale (Eubalaena glacialis): Western Atlantic Stock 17-19 (May 2022), https://perma.cc/UW24-7TQ2.

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Several factors may explain the recent downward trend. The availability of food is one of them. To sustain its massive body, an adult right whale must feed upon dense groups of copepods. In the past, the Gulf of Maine provided an ample supply. Following abrupt warming of the Gulf in 2010, however, the whale's favorite prey is no longer as abundant. Right whales need large stores of blubber to calve, so having less food has led to a decline in the birth rate. Less food has also altered the whale's migratory patterns; the Service has seen "a shift of right whales out of habitats such as the Great South Channel and the Bay of Fundy, and into [other] areas such as the Gulf of St. Lawrence in the summer and [waters] south of New England and Long Island in the fall and winter." See also Leah M. Crowe et al., In Plane Sight: A Mark-Recapture Analysis of North Atlantic Right Whales in the Gulf of St. Lawrence, 46 Endangered Species Research 227, 243 (2021) (showing the Gulf of St. Lawrence "is currently an important habitat for approximately 40% of this species from the beginning of May to December"). This is significant because the migration into Canada has made the whale more likely to get entangled in the heavy fishing gear used to harvest Canadian snow crab.

Indeed, most right whales die from vessel strikes or entanglement in fishing gear. Entanglement may also reduce calving rates. Whether and to what extent the federal lobster fishery is responsible for hampering the right whale population is the question at the heart of the scientific controversy giving rise to this litigation.

B. The Agency Actions

In 2017, 17 right whales were killed by vessel strikes and fishing gear, five found in the United States. and a dozen in Canada, leading the Service to declare an "unusual mortality event" for the whale under the Marine Mammal Protection Act (MMPA). 16 U.S.C. § 1421c. At the same time, a new study documented the whale's sudden decline. See Richard M. Pace, III, et al., State-Space Mark-Recapture Estimates Reveal a Recent Decline in Abundance of North Atlantic Right Whales, 7 Ecology and Evolution 8730, 8739 (2017). The Service responded by taking action under the ESA and the MMPA.

1. The biological opinion

In light of the new study and the elevated number of right whale deaths, the Service reinitiated a formal consultation under § 7 of the ESA for fisheries that may harm the right whale, including the lobster fishery. See 50 C.F.R. § 402.16(a)(1)-(2). The Service administers both the ESA and federal fisheries, so the consultation occurred in-house: The Sustainable Fisheries Division consulted with the Protected Resources Division, the former being the division that manages federal fisheries, the latter being the experts in protecting marine mammals.

In a typical consultation, an agency proposes an action and the Service prepares a "biological opinion" documenting the effects of the action. 50 C.F.R. § 402.14(h). If the Service finds the action will likely "jeopardize" a protected species by appreciably reducing its chance of surviving, then the Service proposes "reasonable and prudent alternatives," if there are any, that reduce the increased risk of extinction. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(2). The action agency then has three choices: It may implement the proposed alternative(s), end the action, or ask the politically accountable Endangered Species Committee for an exemption from the ESA. 16 U.S.C. § 1536(e), (g).

That is not what happened here, however. Instead, as we explain below, after finding the lobster and related Jonah crab federal fisheries kill an unsustainable number of right whales, the Service avoided a finding of jeopardy by redefining the action at issue.

a. The Service concluded the federal lobster fishery kills many right whales

In the biological opinion, the Service's first task was to describe the "reasonably certain" effects of the fisheries on the right whale. 50 C.F.R. § 402.02. It began with this preliminary qualification, quoting the legislative history of the 1979 ESA amendments:

Data are limited, so we are often forced to make assumptions to overcome the limits in [sic] our knowledge. Sometimes, the best available information may include a range of values for a particular aspect under consideration or different analytical approaches may be applied to the same data set. When appropriate in those cases, the uncertainty is resolved in favor of the species . . . . We generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species. This approach provides the "benefit of the doubt" to threatened and endangered species.

Quoting H.R. Conf. Rep. No. 96-697, at 12, reprinted in 1979 U.S.C.C.A.N. 2572, 2576. The Service then summarized the data on right whale entanglements beginning in 2010, when there was a "regime shift" in the Gulf of Maine. From 2010 to 2018, there were two documented right whale deaths or serious injuries (likely deaths)¹ from entanglement known to have originated in the United States. On the other hand, as the charts below show, most documented deadly and non-deadly entanglements cannot be traced with confidence to a particular country ...