{"id":549,"date":"2023-06-23T16:09:26","date_gmt":"2023-06-23T20:09:26","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=549"},"modified":"2023-08-08T15:27:13","modified_gmt":"2023-08-08T19:27:13","slug":"d-c-circuit-rejects-national-marine-fisheries-services-egregiously-wrong-decision-on-right-whales","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2023\/06\/23\/d-c-circuit-rejects-national-marine-fisheries-services-egregiously-wrong-decision-on-right-whales\/","title":{"rendered":"D.C. Circuit Rejects National Marine Fisheries Service\u2019s \u201cEgregiously Wrong\u201d Decision on Right Whales"},"content":{"rendered":"

By Michelle C. Pardo<\/strong><\/p>\n

On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the \u201cbenefit of the doubt\u201d to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA). \u00a0Maine Lobstermen\u2019s Association v. National Marine Fisheries Service <\/em>(D.C. Cir. June, 16, 2023) (slip opinion).<\/a> <\/p>\n

North Atlantic right whales are endangered species that live in the coastal waters of the eastern United States and Canada, but occasionally \u201cwander\u201d as far as Iceland and Norway.\u00a0 Id.<\/em> at 4. \u00a0A recent NMFS survey estimates the number of right whales to be at 368, owing in part to food availability due to warming Gulf waters.\u00a0 The food shortage has altered the whales\u2019 migratory patterns and shifted them toward Canada, where they are more likely to become entangled in commercial fishing gear used to harvest Canadian snow crab.\u00a0 Id.<\/em> at 5-6.<\/p>\n

In 2017, following the death of 17 right whales by vessel strikes and fishing gear, NMFS declared an \u201cunusual mortality event\u201d pursuant to the Marine Mammal Protection Act (MMPA).\u00a0 16 U.S.C. \u00a7 1421c.\u00a0 Id.<\/em> at 6.\u00a0 The declaration coincided with a new study that documented the right whale\u2019s sudden decline.\u00a0 In response, the NMFS reinitiated a formal consultation under Section 7 of the ESA for fisheries that may harm the right whale, including lobster fisheries.\u00a0 See<\/em> 50 C.F.R. \u00a7 402.16(a)(1)-(2).\u00a0 Typically, consultations require the agency to prepare a \u201cBiological Opinion\u201d documenting the effects of the action.\u00a0 If NMFS finds that the action is likely to \u201cjeopardize\u201d a protected species then NMFS may propose \u201creasonable and prudent alternatives\u201d \u2013 if any \u2013 to reduce the risk of extinction.\u00a0 It may then implement the alternatives, stop the action, or seek an exemption from the Endangered Species Committee.\u00a0 See<\/em> 16 U.S.C. \u00a7 1536(e), (g).\u00a0 Id.<\/em> at 7.<\/p>\n

NMFS is required to use \u201cthe best scientific and commercial data available\u201d in assessing the impact that an activity may be having on a protected species.\u00a0 Relying on the legislative history of the 1979 ESA amendments, NMFS determined that where data is limited and assumptions are required, it should give the \u201cbenefit of the doubt\u201d to the endangered or threatened species.\u00a0 Id.<\/em> at 7-8.<\/p>\n

In analyzing the data on deadly entanglements, it was apparent that most deadly and non-deadly whale entanglements cannot be traced with confidence to a particular country or to a type of fishing gear.\u00a0 In making its assumptions about projected whale deaths, NMFS concluded that fishing gear used in the lobster and Jonah crab fisheries kills about 46 North Atlantic right whales each decade (a number that would \u201cdecimate\u201d the population in less than 10 years).\u00a0 NMFS also determined that federal fisheries entangle more than 9% of right whales each year.\u00a0 Id.<\/em> at 9.<\/p>\n

NMFS recognized these assumptions may be \u201cpessimistic\u201d but explained it needed to give the \u201cbenefit of the doubt\u201d to the species.\u00a0 The assessment was the basis for a final rule implementing and amending a \u201ctake reduction plan\u201d for the right whale under the MMPA.\u00a0 This rule required lobstermen to make various modifications to their equipment and include seasonal fishing restrictions.\u00a0 Id.<\/em> at 11. In addition to various conservation groups\u2019 lawsuit against the rule as not stringent enough, lobstermen industry groups brought a lawsuit against NMFS as the rule would cost them an estimated $50 to $90 million over the first six years.\u00a0 Conservation groups intervened as defendants.\u00a0 Id.<\/em> at 13.\u00a0 The district court entered summary judgment for NMFS and while on remand, the conservation groups were successful in getting the court to order the NMFS to promulgate a new rule. \u00a0Id.<\/em> at 13-14.<\/p>\n

After finding that the potential harm flowing from the biological opinion (the \u201cpocketbook injury\u201d) was an appropriate basis on which to base the lobstermen’s standing, in addition to finding organization standing (and interim proceedings on whether the case was moot due to intervening legislation), the D.C. Circuit found that nothing in Section 7 of the ESA requires the NMFS to \u201cdistort[] the decisionmaking process by overemphasizing highly speculative harms.\u201d\u00a0 Id.<\/em> at 21.\u00a0 The D.C. Circuit harkened back to the infamous \u201csnail darter\u201d case in which the Supreme Court halted the construction on the Tellico Dam that had a price tag of $100 million (in 1978 dollars). \u00a0TVA v. Hill<\/em>, 437 U.S. 153, 172 (1978).\u00a0 In that case, the Supreme Court deemed the waste justified by \u201cinstitutionalized caution\u201d of the ESA, which had the practical effect of causing government or industry \u201cto spend billions to save one more fish.\u201d\u00a0 See Entergy Corp. v. Riverkeeper, Inc.<\/em>, 556 U.S. 208, 233 (2009) (Breyer, J., concurring in part and dissenting in part).<\/p>\n

The snail darter case prompted Congress to change \u201cdo not jeopardize\u201d to \u201cis not likely to jeopardize\u201d with the mandate for an agency to rely upon \u201cthe best scientific evidence and commercial data available.\u201d\u00a0 Maine Lobstermen\u2019s Assoc.<\/em> (Slip Op.) at 22.\u00a0 The legislative history showed that Congress did not want economic activity to come to a screeching halt where complete data was lacking.<\/p>\n

The D.C. Circuit declined to adopt an \u201caggressive reading of Chevron<\/em> that has more or less fallen into desuetude,\u201d id.<\/em> at 23 (citing Buffington v. McDonough<\/em>, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari)), and rejected this take on Chevron<\/em> that would give an agency \u201cwide latitude.\u201d\u00a0 Id.\u00a0 <\/em>The Court found that NMFS misconceived the law when it wrongly concluded that the ESA\u2019s legislative history compelled a precautionary principle in favor of the species.<\/p>\n

In a harsh rebuke of the NMFS, the Court further stated:<\/p>\n

“Indeed, the Service\u2019s legal reasoning was not just wrong; it was egregiously wrong<\/strong>.\u00a0 The Service\u2019s argument rested entirely upon a half-sentence in the legislative history.\u00a0 This \u2018approach is a relic from a bygone era of statutory construction. . . We cannot approve such a casual disregard of the rules of statutory interpretation. . . The reason is obvious; as any high school Civics student should know, legislators vote on and the president signs bills, not their legislative history.\u00a0 Legislative history therefore cannot bind the executive branch and compel a presumption in favor of the species not required by statute<\/strong>.”<\/p><\/blockquote>\n

Id.<\/em> at 25.\u00a0 (internal citations omitted; emphasis supplied).<\/p>\n

The Court also ruled that NMFS change in position is arbitrary and capricious, finding that only a few years ago, NMFS agreed with commenters that nothing in the ESA required it to use a \u201cworst case scenario\u201d or make unduly conservative modeling assumptions.\u00a0 Id.<\/em> at 26.\u00a0 Noting that agencies are free to change their existing policies provided they give reasoned explanation for the change, the Court nonetheless found that NMFS \u201cdisplayed no awareness of its own flip flop\u201d and deemed it arbitrary and capricious.\u00a0 But even if the agency had shown awareness of its new position, the D.C. Circuit said that it would still have to reject the argument because the statute is focused on \u201clikely\u201d outcomes, not worst case scenarios.\u00a0 Id.<\/em> at 27.<\/p>\n

The decision is significant, as it curtails a federal agency\u2019s ability to expand its \u201cveto power\u201d and \u201cinvites the unnecessary economic dislocation wrought by worst-case thinking.\u201d\u00a0 Id.<\/em> at 28 (citing Michigan v. EPA<\/em>, 576 U.S. 743, 753 (2015).\u00a0 Notably, the Court also considered the serious real-world effects that occur when agencies overreach in making their decisions \u2013 such as \u201cgreat physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations.\u201d\u00a0 Id.<\/em> at 28-29.<\/p>\n

The D.C. Circuit made abundantly clear, \u201cit is not the province of a scientific consultant to pick whales over people\u201d and admonished agencies against distorting the analysis, lest the public have no confidence that the \u201ceconomic dislocation\u201d necessary to protect a species is the result of \u201coverly zealous agency officials.\u201d\u00a0\u00a0Id.<\/em> at 21.<\/p>\n

This decision is a win for industries, businesses, and organizations whose activities are frequently at the mercy of federal agency actions and decisions, particularly those that are increasingly under attack by activists and advocates that push ideological goals and agendas at odds with their activities (and lobby the government for decisions that align with these goals).\u00a0 It also serves as a warning to federal agencies that base decisions on policy judgments rather than \u201cthe best scientific and commercial data available\u201d \u2013 the key being data \u2013 <\/em>not environmental or scientific theories or assumptions that steeped in speculation and \u201cworst case scenario\u201d conclusions.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Michelle C. Pardo On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the \u201cbenefit of the doubt\u201d to endangered species or rely on worst-case scenarios … <\/p>\n

Continue reading “D.C. Circuit Rejects National Marine Fisheries Service\u2019s \u201cEgregiously Wrong\u201d Decision on Right Whales”<\/span><\/a><\/p>\n","protected":false},"author":318,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[44,211,988,987,984,6,118,989,983,934,11,175,42,982,63,935,985,986,990],"ppma_author":[698],"class_list":["post-549","post","type-post","status-publish","format-standard","hentry","category-general","tag-animal-activist","tag-arbitrary-and-capricious-agency-action","tag-best-scientific-and-commercial-data-available","tag-biological-opinion","tag-chevron","tag-endangered-species-act","tag-environmental-activist","tag-fisheries","tag-lobstermen","tag-maine-lobster","tag-marine-mammal-protection-act","tag-michelle-c-pardo","tag-michelle-pardo","tag-national-marine-fisheri","tag-nmfs","tag-north-atlantic-right-whale","tag-snail-darter","tag-tellico-dam","tag-tva-v-hill"],"authors":[{"term_id":698,"user_id":318,"is_guest":0,"slug":"mcpardo","display_name":"Michelle Pardo","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/pardomichelle-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/549","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/318"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=549"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/549\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=549"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=549"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=549"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=549"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}