Case 1:18-cv-00112-JEB Document 219 Filed 07/08/22 Page 1 of 43
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
`
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY, et al.,
`
`
`
`
`
`
`
`Civil Action No. 18-112 (JEB)
`
`
`
`
`Plaintiffs,
`
`v.
`GINA RAIMONDO, in her official capacity
`as Secretary of Commerce, et al.,
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`Defendants,
`
`
`
`and
`
`
`MAINE LOBSTERMEN’S
`ASSOCIATION, et al.,
`
`
`Defendant-Intervenors.
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`
`
`
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`
`
`MEMORANDUM OPINION
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`The lives of our vast oceans may appear timeless. Indeed, at the end of Moby-Dick, “the
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`great shroud of the sea rolled on as it rolled five thousand years ago.” Not so, however, for many
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`creatures who live there, including its greatest leviathans. For example, just around 370 North
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`Atlantic right whales remain in existence. For centuries, these whales were imperiled by
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`excessive hunting, but today the greatest human-caused threat comes from entanglement in
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`fishing gear.
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`
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`Much of that gear is dropped into the ocean by crews fishing for lobster. Since the gear
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`harms right whales, the Endangered Species Act requires that before Defendant National Marine
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`Fisheries Service authorizes the fisheries under its management, it must issue a Biological
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`Opinion finding that the fishery operations will not jeopardize the continued existence of the
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`right whale. As part of such a “no-jeopardy” BiOp, NMFS must issue an “incidental take
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`statement” (ITS) authorizing the number, if any, of anticipated future killings or injuries of right
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`whales.
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`This Court has already once found a previous version of NMFS’s BiOp invalid for lack
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`of an ITS and sent the agency back to the drawing board. In 2021, the Service released a new
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`BiOp addressing how lobster and crab fishing off the Atlantic coast would affect the dwindling
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`right-whale population. In this most recent BiOp, NMFS concluded that the fisheries under
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`review would not jeopardize the continued existence of the whale despite acknowledging the
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`expected potential harm to the species. In reaching this determination, the Service included an
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`ITS in which it authorized no lethal taking of the whales, even though it projected that, at least in
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`the near future, nearly three whales could be killed annually. NMFS, in consultation with a
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`variety of stakeholders, and as mandated by the Marine Mammal Protection Act, also released a
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`Final Rule that amended the specific rules that constituted the Atlantic Large Whale Take
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`Reduction Plan.
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`Three conservation groups have renewed their suit against the Department of Commerce,
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`of which NMFS is a part. They argue that the new BiOp still does not satisfy the ESA and
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`MMPA’s requirements, just as the Final Rule flunks the MMPA’s. Although the Court will not
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`reach every shortcoming that Plaintiffs allege, it concurs that NMFS violated the ESA by failing
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`to satisfy the MMPA’s “negligible impact” requirement before setting the authorized level of
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`lethal take in its ITS. NMFS also breached the time requirements mandated by the MMPA in the
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`2021 Final Rule. The Court will thus hold the 2021 Biological Opinion and the 2021 Final Rule
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`to be invalid.
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`Cognizant of the potential effects of this ruling on the lobster industry — and on the
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`economies of Maine and Massachusetts — and given the highly complex statutory and
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`regulatory environment that this case involves, the Court orders no remedy here. Instead, it will
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`offer the parties the opportunity for further briefing to articulate alternatives the Court may
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`select.
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`I.
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`
`Background
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`The Court starts by laying out the framework of the two statutes most relevant to this case
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`— the Marine Mammal Protection Act and the Endangered Species Act — before describing the
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`factual and procedural background. As will be explained in more depth below, Plaintiffs’
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`Complaints rely on the ESA, the MMPA, and the Administrative Procedure Act for different
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`counts.
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`Within this statutory scheme, NMFS plays an important role, as it is the agency within
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`the Department of Commerce that “is responsible for the stewardship of the nation’s ocean
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`resources and their habitat.” NOAA FISHERIES, About Us, https://bit.ly/3Nd7HP1 (last accessed
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`June 22, 2022). This work includes implementing fishery-management plans and working to
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`protect endangered marine species. See Oceana, Inc. v. Raimondo, 35 F.4th 904, 906 (D.C. Cir.
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`2022). The American lobster and Jonah Crab fisheries fall under NMFS’s auspices as the
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`Service adopts and implements “regulations compatible with the interstate fishery management
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`plans” required by statute. See ECF No. 216-3 (Joint Appendix Vol. 3 “JA3”) at ECF p. 80.
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`This implementation process includes “a federal permitting process for fishermen harvesting
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`lobster in federal waters,” which are waters over three nautical miles from the shore extending to
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`around two hundred nautical miles. See ECF No. 198-1 (State of Maine Cross-MSJ) at 4; see
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`also 16 U.S.C. § 5103 (requirements for state-federal cooperation in managing Atlantic coastal
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`fisheries). State waters, conversely, lie in the three nautical miles closest to shore. See ECF No.
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`188-1 (Pls. MSJ) at 13. NMFS also issues and implements regulations under plans designed to
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`reduce the killing and injury of certain marine mammals, including right whales. See 16 U.S.C.
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`§ 1387(f).
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`A. Statutory Framework
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`1. Marine Mammal Protection Act
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`The MMPA was passed in 1972 in acknowledgment of the fact that “certain species and
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`population stocks of marine mammals are, or may be, in danger of extinction or depletion as a
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`result of man’s activities” and “should be protected and encouraged to develop to the greatest
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`extent feasible commensurate with sound policies of resource management.” 16 U.S.C.
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`§ 1361(1) & (6). To that end, the Act “generally prohibits any individual from ‘taking’ a marine
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`mammal.” Winter v. NRDC, 555 U.S. 7, 15 (2008). The MMPA defines to “take” as “to harass,
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`hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C.
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`§ 1362(13); see also 50 C.F.R. § 216.3 (explaining that “[t]ak[ing]” also includes “the doing of
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`any other negligent or intentional act which results in disturbing or molesting a marine
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`mammal”).
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`Although the MMPA places “a moratorium on the taking and importation of marine
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`mammals,” 16 U.S.C. § 1371(a), there are “several enumerated exceptions.” In re Polar Bear
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`Endangered Species Act Listing and Section 4(d) Rule Litig., 720 F.3d 354, 357 (D.C. Cir.
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`2013). Two in particular govern the incidental taking of marine mammals “in the course of
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`commercial fishing operations” under the MMPA. See 16 U.S.C. § 1371(a)(2); see also 140
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`Cong. Rec. 8609, 8761 (April 26, 1994) (statement of Senator Stevens that “in the case of
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`threatened or endangered marine mammals, both section 101(a)(5)(E) and section 118 apply”).
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`Section 101(a)(5)(E)(i) permits the taking incidental to commercial fishing operations “of
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`marine mammals from a species or stock designated as depleted because of its listing as an
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`endangered species or threatened species” under the ESA if certain elements are satisfied. See
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`16 U.S.C. § 1371(a)(5)(E)(i). Such taking may be allowed for a period of three years only if
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`“after notice and opportunity for public comment,” NMFS finds that “the incidental mortality
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`and serious injury from commercial fisheries will have a negligible impact on such species or
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`stock.” Id. § 1371(a)(5)(E)(i)(I) (emphasis added). Negligible impact, in this context, is “an
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`impact resulting from [a] specified activity that cannot be reasonably expected to, and is not
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`reasonably likely to, adversely affect the species or stock through effects on annual rates of
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`recruitment or survival.” 50 C.F.R. § 216.103. This negligible impact will be one significant
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`issue here. Section 101(a)(5)(E) also requires that a species-recovery plan be developed or be in
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`process and that any monitoring program, vessel registration, or take-reduction plan required
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`under section 118 of the MMPA be in place. See 16 U.S.C. § 1371(a)(5)(E)(i)(II)–(III).
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`Section 118, meanwhile, imposes additional requirements governing the taking of marine
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`mammals incidental to commercial fishing. For example, the Secretary must “develop and
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`implement a take reduction plan designed to assist in the recovery or prevent the depletion of
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`each strategic stock which interacts with [the relevant] commercial fisher[ies].” Id. § 1387(f)(1).
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`These take-reduction plans are developed by take-reduction teams and must include
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`information on the number of animals being killed or seriously injured annually, recommended
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`measures to reduce M/SI (mortality and serious injury) takings, and dates for achieving these
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`goals. Id. §§ 1387(f)(4)–(f)(6). In this case, the plan is entitled the Atlantic Large Whale Take
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`Reduction Plan (ALWTRP) and seeks to lower the incidental entanglement of several types of
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`large whales, including right whales, in fishing gear. The MMPA requires that “[t]he immediate
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`goal of a take reduction plan . . . be to reduce, within 6 months of its implementation, the
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`incidental mortality or serious injury of marine mammals incidentally taken in the course of
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`commercial fishing operations to levels less than the potential biological removal level” for that
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`marine mammal stock. Id. § 1387(f)(2). The potential biological removal (PBR) level is “the
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`maximum number of animals, not including natural mortalities, that may be removed from a
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`marine mammal stock while allowing that stock to reach or maintain its optimum sustainable
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`population.” 50 C.F.R. § 229.2. The six-month deadline is another focus of the controversy
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`here. Additionally, the “long-term goal” of a take-reduction plan is “to reduce, within 5 years of
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`its implementation, the incidental mortality or serious injury of marine mammals incidentally
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`taken in the course of commercial fishing operations to insignificant levels approaching a zero
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`mortality and serious injury rate, taking into account the economics of the fishery, the
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`availability of existing technology, and existing State or regional fishery management plans.” 16
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`U.S.C. § 1387(f)(2). A take-reduction plan must be amended “as necessary to meet the
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`requirements of” the MMPA. Id. § 13887(f)(7)(F).
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`2. Endangered Species Act
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`The ESA was passed in 1973 “to halt and reverse the trend toward species extinction,
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`whatever the cost.” Nat’l Ass’n of Home Builders v. U.S. Fish and Wildlife Serv., 786 F.3d
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`1050, 1052 (D.C. Cir. 2015) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978)).
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`The most salient of the Act’s provisions for this case are those ensuring that proposed federal
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`actions will not threaten endangered species and that appropriate consultations occur to address
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`such risks. Section 7(a)(2) of the ESA, for instance, states that “[e]ach Federal agency shall . . .
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`insure that any action authorized, funded, or carried out by such agency . . . is not likely to
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`jeopardize the continued existence of any endangered species.” 16 U.S.C. § 1536(a)(2). To
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`carry out this task, the accompanying regulations state that “[e]ach Federal agency shall review
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`its actions at the earliest possible time to determine whether any action may affect listed
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`species.” 50 C.F.R. § 402.14(a). If that is the case, the relevant agency (known as the “action
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`agency” because it is the one proposing the action) must consult with a “consulting agency,”
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`which conducts the expert analysis on how the proposed action will affect the survival of the
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`relevant endangered species and the effects on its habitat. Id.; Conservation Law Found. v. Ross,
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`422 F. Supp. 3d 12, 16–17 (D.D.C. Oct. 28, 2019). This consulting agency is either the U.S.
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`Fish and Wildlife Service or the National Marine Fisheries Service. United States Fish &
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`Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 784 (2021). Here, both the “action agency”
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`and the “consulting agency” were divisions of NMFS, with the former being NMFS’s
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`Sustainable Fisheries Division, and the latter its Protected Resources Division. See JA3 at ECF
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`p. 8; id. at ECF p. 80 (when NMFS itself is “proposing an action[,] . . . the agency must conduct
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`intra-service consultation”).
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`The aim of this process is for the consulting agency to assess whether the action will
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`violate section 7(a)(2)’s prohibition on jeopardizing the continued existence of endangered and
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`threatened species. The process culminates in a “biological opinion” to be issued by the
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`“consulting agency,” not the agency proposing the action. See 50 C.F.R. § 402.14(e). “In
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`formulating a Biological Opinion, FWS and NMFS must ‘use the best scientific and commercial
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`data available.’” Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 475 (D.D.C. 2014) (citing 16
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`U.S.C. § 1536(a)(2)). The BiOp issued can either be “a ‘jeopardy’ biological opinion” or “a ‘no
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`jeopardy’ biological opinion” depending on whether the action under review is “likely to
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`jeopardize the continued existence of a listed species” or harm a “critical habitat.” 16 U.S.C.
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`§ 402.14(h)(1)(iv). “[I]f a ‘jeopardy’ biological opinion is issued, the agency must either
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`implement the reasonable and prudent alternatives [proposed by the consulting agency],
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`terminate the action altogether, or seek an exemption” for their project. United States Fish &
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`Wildlife Serv., 141 S. Ct. at 784; see also 50 C.F.R. § 402.15.
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`In this case, the 2021 BiOp issued by the Protected Resources Division was a “no
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`jeopardy” biological opinion. See JA3 at ECF p. 162. When a “no jeopardy” BiOp issues — or
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`when there are reasonable and prudent alternatives to the proposed action — a project may
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`proceed, but the BiOp must include what is known as an “incidental take statement” addressing
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`certain elements of the project’s potential to “take” a species. See 50 C.F.R. § 402.14(i). Much
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`like the MMPA, the ESA defines to “take” as “to harass, harm, pursue, hunt, shoot, wound, kill,
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`trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19); see
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`also 50 C.F.R. § 222.102 (definition also includes “significant habitat modification or
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`degradation which actually kills or injures fish or wildlife by significantly impairing essential
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`behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering”).
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`The information that an agency must produce regarding “take” is laid out below:
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`If after consultation under subsection (a)(2), the Secretary concludes
`that —
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`(A) the agency action will not violate such subsection [i.e.,
`through a no-jeopardy BiOp], or offers reasonable and
`prudent alternatives which the Secretary believes would not
`violate such subsection;
`(B) the taking of an endangered species or a threatened
`species incidental to the agency action will not violate such
`subsection; and
`(C) if an endangered species or threatened species of a
`marine mammal is involved, the taking is authorized
`pursuant to section 1371(a)(5) of [the MMPA, discussed
`below];
`the Secretary shall provide the Federal agency and the applicant
`concerned, if any, with a written statement that —
`(i) specifies the impact of such incidental taking on the
`species,
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`(ii) specifies those reasonable and prudent measures that the
`Secretary considers necessary or appropriate to minimize
`such impact,
`(iii) in the case of marine mammals, specifies those measures
`that are necessary to comply with section 1371(a)(5) of [the
`MMPA] with regard to such taking, and
`(iv) sets forth the terms and conditions (including, but not
`limited to, reporting requirements) that must be complied
`with by the Federal agency or applicant (if any), or both, to
`implement the measures specified under clauses (ii) and (iii).
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`16 U.S.C. § 1536(b)(4).
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`This section creates two sets of requirements for the written incidental-take statement.
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`First, there are antecedent conditions laid out in subsections (A) through (C) that must be
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`satisfied before an agency can even issue an ITS. Second, there are certain elements that the ITS
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`must include, which are articulated in 16 U.S.C. § 1536(b)(4)(i)–(iv). See also 50 C.F.R.
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`§ 402.14(i). Of the most relevance here is the third antecedent condition to issuing an ITS: that
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`an agency cannot do so unless the amount of projected incidental take from the project is
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`authorized under section 101(a)(5) of the Marine Mammal Protection Act, which, as earlier
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`discussed, requires that the taking have no more than a negligible impact on the species. See 16
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`U.S.C. §§ 1536(b)(4)(C), 1371(a)(5); see also 50 C.F.R. § 402.14(i)(1) (requiring an ITS “[i]n
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`those cases where the [expert agency] concludes that an action (or the implementation of any
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`reasonable and prudent alternatives) and the resultant incidental take of listed species will not
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`violate section 7(a)(2) and, in the case of marine mammals, where the taking is authorized
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`pursuant to section 101(a)(5) of the Marine Mammal Protection Act of 1972”).
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`Overall, ITSs serve several functions. Since the ESA makes it unlawful to “take” a
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`species except in certain circumstances, an ITS “constitutes a permit authorizing the action
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`agency to ‘take’ the endangered or threatened species” up to the level specified in the ITS “so
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`long as [the action agency] respects the” terms and conditions with which the ITS states it must
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`comply. Bennett v. Spear, 520 U.S. 154, 170 (1997). Additionally, “[i]f the amount or extent of
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`taking specified in the incidental take statement is exceeded,” then an agency must reinitiate
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`Section 7 consultations, another long-standing issue at play in this case. See 50 C.F.R.
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`§ 402.16(a)(1).
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`B. Factual and Procedural History
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`Well before the elaborate scheme of environmental protections just described was
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`enacted, the North Atlantic right whale was so named because it was the right whale to hunt.
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`The species has thus long been in peril. Indeed, it has been listed as endangered since 1970,
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`predating even the passage of the ESA. See JA3 at ECF p. 101. Although the right-whale
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`population has fluctuated over time, new scientific evidence in 2017 showed that its numbers had
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`been declining for nearly a decade. See ECF 202-2 (Fed. Dfts. Cross-MSJ) at 9. As of January
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`2019, the population was estimated at 368, a considerable drop from 481 just eight years prior.
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`See JA3 at ECF p. 103. There are likely even fewer today. See Pls. MSJ at 3 (citing New
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`England Aquarium, North Atlantic Right Whale Consortium Report Card, https://bit.ly/3t6FbqS
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`(last visited June 3, 2022)). Given these limited numbers, “even one additional death a year
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`increases the odds that the right whale will go extinct.” District 4 Lodge of the Int’l Ass’n of
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`Machinists and Aerospace Workers Local Lodge 207 v. Raimondo, 18 F.4th 38, 41 (1st Cir.
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`2021).
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`Although a variety of factors have precipitated this decline, “the two major known human
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`causes of mortality are vessel strikes and entanglement in fishing gear.” JA3 at ECF p. 104.
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`Between 2010 and 2018, there were 107 entanglements of the North Atlantic right whale, nearly
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`half of which resulted in mortality or serious injury. Id. at ECF p. 119. Vertical-line fishing gear
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`poses a particular threat to the whales, as they can become trapped in ropes stretching down from
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`the water’s surface to the ocean floor. Among the types of vertical-line fishing gear are trap/pot
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`gear, used for catching lobsters and Jonah crabs, and gillnets, which are used to catch various
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`types of fish. Ctr. for Biological Diversity v. Ross, No. 18-112, 2020 WL 1809465, at *5
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`(D.D.C. Apr. 9, 2020) (CBD I). Of the two, entanglement in trap/pot gear is far deadlier for right
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`whales. See JA3 at ECF p. 122.
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`1. Case Background
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`As will be explained below, this case has washed up on this Court’s shores several times.
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`Plaintiffs — the Center for Biological Diversity, Defenders of Wildlife, and Conservation Law
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`Foundation — first sued in January 2018 challenging the 2014 BiOp and subsequent agency
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`action. See ECF No. 1 (Compl.). Although four claims were initially raised, the case was
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`resolved on only one of them — namely, the fact that the 2014 BiOp did not include an ITS and
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`included instead only a numerical trigger for how many right whales would need to be killed
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`before ESA section 7 consultations would be reinitiated. In April 2020, this Court found that
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`“the Service’s failure to include an ITS in its 2014 BiOp,” despite the relatively high rate of
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`lethal take anticipated, was “about as straightforward a violation of the ESA as they come.”
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`CBD I, 2020 WL 1809465, at *10. It thus “declare[d] the 2014 BiOp to be invalid under the
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`Endangered Species Act.” Id. In a subsequent Opinion in August 2020, the Court addressed the
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`appropriate remedy. Because NFMS was already in the process of amending the Atlantic Large
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`Whale Take Reduction Plan and crafting a new Biological Opinion, this Court vacated the 2014
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`BiOp, but held that relief should be stayed until May 31, 2021, to allow for completion of those
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`two documents. Ctr. for Biological Diversity v. Ross, 480 F. Supp. 3d 236, 240 (D.D.C. 2020)
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`(CBD II). Amendments to the ALWTRP are issued through the notice-and-comment rulemaking
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`process, while the BiOp analyzes the effect that the consulting agency projects that particular
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`actions will have on threatened species.
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`2. 2021 BiOp and Incidental Take Statement
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`On May 27, 2021, NMFS issued its new Biological Opinion. See JA3 at ECF p. 75. This
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`2021 BiOp authorized fishing in an “action area” encompassing federal waters in which “ten
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`fisheries operate” between Maine and Key West, Florida. See JA3 at ECF p. 93; id. at ECF p. 85
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`(proposed action is authorization of ten fisheries). This area spans the American portion of the
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`North Atlantic right whales’ habitat; true to their name, these whales “are primarily found in the
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`western North Atlantic, from their calving grounds in lower latitudes off the coast of the
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`southeastern United States to their feeding grounds in higher latitudes off the coast of New
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`England and Nova Scotia.” Id. at ECF p. 102. Given climate change, however, the whales’
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`habitat has shifted northward as of late following the movement of their main food sources —
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`zooplankton and copepods — to cooler waters. Id. at ECF p. 119; see also Fed. Dfts. Cross-MSJ
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`at 8–9.
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`Within the scope of the 2021 BiOp’s analysis — in addition to the authorization of
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`fisheries — was a proposal developed to reduce the lethal taking of North Atlantic right whales
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`to near zero by 2030 under a four-part scheme. See Fed. Dfts. Cross-MSJ at 18. This proposal is
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`known as the North Atlantic Right Whale Conservation Framework for Federal Fisheries in the
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`Greater Atlantic Region (the Framework). See JA3 at ECF p. 86.
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`Even accounting for the effects of this Framework, however, NMFS still projects in the
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`2021 BiOp that the population of right whales will continue to decline during the coming decade.
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`In particular, it estimates that even after implementation of the modifications in the Final Rule
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`proposed to the ALWTRP, several right whales will be killed or severely injured annually in
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`trap/pot fisheries and gillnets. An estimated 2.69 entanglements per year leading to mortality or
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`serious injury (M/SI incidents) for right whales are expected to occur in federal fisheries in 2022,
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`although this rate will gradually decline to 2.61 in 2023–2025 and to 0.136 per year by 2030.
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`See JA3 at ECF p. 146. Of these entanglements, 2.56 would occur from the trap/pot fisheries
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`associated with lobstering and crabbing until 2025. Id. Although these rates of M/SI
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`entanglement are still below the average of 4.7 per year between 2010 and 2018 (4.57 of which
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`were in trap/pot gear), id., they nonetheless remain well above the right whale’s potential
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`biological removal level (PBR) at least for the next few years. Currently for right whales that
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`level is just 0.8 M/SI per year. See 86 Fed. Reg. 51,970, 51,971 (Sept. 17, 2021).
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`Despite these findings, the 2021 BiOp nonetheless “conclude[s] that right whale
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`entanglements due to the operation of the federal fisheries will not result in an appreciable
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`reduction in the likelihood of survival and recovery of North Atlantic right whales compared to
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`the no federal fishery scenario.” JA3 at ECF p. 162. As a result, it determined that “the
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`proposed action, including the implementation of the Framework, is not likely to jeopardize the
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`continued existence of North Atlantic right whales.” Id. Additionally, in the ITS accompanying
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`the BiOp, NMFS states that it is “authorizing zero lethal take of these whales because the lethal
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`incidental take of ESA-listed whales has not been authorized under section 101(a)(5) of the
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`MMPA.” Id. at ECF p. 165. The ITS also includes an “exemption for non-lethal take of North
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`Atlantic [right whales]” of up to 9.14% of the species’ population. Id. at ECF pp. 165–66. If
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`either the lethal or non-lethal take threshold is exceeded, then consultations must be reinitiated
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`under section 7 of the ESA. Id. at ECF p. 165.
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`NMFS does acknowledge, however, that “further efforts are necessary to reduce
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`interactions between authorized federal fisheries and large whales in order to achieve the
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`MMPA’s goal of insignificant levels of incidental mortality and serious injury of marine
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`mammals approaching a zero mortality and serious injury rate” and that it will continue to work
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`towards the “zero mortality goal” through the Framework. Id. The ITS, which clearly reflects
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`the expenditure of considerable effort by NMFS, also includes reasonable and prudent measures,
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`monitoring protocols, and other features aimed at minimizing incidental take. Id. at ECF pp.
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`167–173.
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`3. 2021 Final Rule
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`In September 2021, NMFS released the Final Rule amending the Atlantic Large Whale
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`Take Reduction Plan. See 86 Fed. Reg. 51,970. The changes in this rule represent the first
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`phase of the Framework discussed above. See JA3 at ECF p. 88.
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` The ALWTRP was issued in 1997 in fulfillment of NMFS’s obligations under section
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`118 of the MMPA. Id. at ECF p. 185. It is the product of consultations by the Take Reduction
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`Team (TRT), which consists of “representatives from the fishing industry, state and Federal
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`resource management agencies, the scientific community, and conservation organizations,”
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`including Plaintiffs, and was first convened in 1996. See Fed. Dfts. Cross-MSJ at 9. The
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`ALWTRP has been amended over time to meet the conservation needs of right whales, including
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`most recently in the 2021 Final Rule, which arose from a reinitiation of consultation by the TRT
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`members in 2017. Id. (discussing need to reconvene TRT in wake of “unusual mortality event”
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`for right whales). The 2021 Final Rule creates two new seasonal restricted areas for fishing and
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`expands others. See 86 Fed. Reg. 52,019–23. The Rule also includes new requirements on
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`trap/pot gear to reduce the potential harm from entanglements, including by preventing buoy
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`lines from floating on the surface, reducing the number of lines that can be placed per trawl, and
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`requiring the insertion of weak links that will break more easily if a whale becomes entangled.
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`Id. at 52,017–19. These changes went into effect last month.
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`This new Rule comes into play against the backdrop of the importance of lobster fishing
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`to the economies of several states along the Atlantic seaboard. In particular, in coastal Maine,
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`“the lobster supply chain has an economic impact . . . of $1 billion annually” and benefits
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`numerous fishermen and their families. See Maine Cross-MSJ at 11; see also ECF No. 206
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`(Massachusetts Lobstermen’s Association’s Opposition (MALA Opp.)) at 9–11 (discussing
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`economic and labor effects of trap/pot fishing on coastal Massachusetts communities).
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`C. Current Suit
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`Despite all of the efforts incorporated in the new 2021 BiOp and the Final Rule amending
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`the ALWTRP, Plaintiffs remain dissatisfied. They thus filed an Amended Complaint in
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`September 2021. See ECF No. 171 (Am. Compl.). In total, Plaintiffs now raise six claims: they
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`believe that the final two counts from their original 2018 Complaint remain live, and they present
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`four new causes of action in the Amended Complaint. For the sake of consistency with the
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`parties, the original numbering of these claims is maintained. The extant counts are thus: III) the
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`BiOp violates the ESA by allowing for the unpermitted take of North Atlantic right whales; IV)
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`NMFS’s actions violate the MMPA and APA because the required “negligible impact” finding
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`has not been made under section 101(a)(5)(E) of the MMPA; V) the BiOp is unlawful under the
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`APA and ESA because it fails to consider the full effects of the agency action by focusing on too
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`limited a geographic area and too large a time span; VI) NMFS has failed to issue a lawful
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`incidental-take statement for the right whales in contravention of the APA and ESA; VII) the
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`Final Rule violates the APA and MMPA as it does not “reduce right whale mortality and serious
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`injury to below PBR within six months,” as required under 16 U.S.C. § 1387(f); and VIII) the
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`Court should compel NMFS to address its “ongoing failure to reduce right whale mortality and
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`serious injury in the lobster fishery to below PBR within the timeline mandated by the MMPA,”
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`as failure to do so is an unreasonable delay under the APA. See Compl., ¶¶ 130–39 (Counts III–
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`IV); Am. Compl., ¶¶ 130–56 (Counts V–VIII).
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`Finally, the parties involved remain nearly the same as in this case’s earlier iterations. In
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`addition to the Maine Lobstermen’s Association and the Massachusetts Lobstermen’s
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`Association, who were both Defendant-Intervenors initially, the State of Maine and the Maine
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`Lobstering Union have now intervened as well. See ECF Nos. 98 (Maine Lobstering Union’s
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`Motion to Intervene) and 172 (Maine’s Motion to Intervene).
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`II.
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`Legal Standard
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`Plaintiffs, Federal Defendants, the State of Maine, and the Maine Lobstermen’s
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`Association have all cross-moved for summary judgment. The APA provides the standard of
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`review for Plaintiffs’ claims, although some are brought under the APA and MMPA, others
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`invoke the APA and the ESA, and one names the ESA alone. Nat’l Ass’n of Home Builders v.
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`Norton, 415 F.3d 8, 13 (D.C. Cir. 2005) (APA provides standard of review in ESA cases);
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`NRDC v. Evans, 279 F. Supp. 2d 1129, 1142 (N.D. Cal. 2003) (“[A]ctions challenged under the
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`MMPA are reviewed under the APA . . . .”).
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`“[W]hen a party seeks review of agency action under the APA [before a district court], . . .
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`the district judge sits as an appellate tribunal.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C.
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`Cir. 2009) (alteration in original) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077,
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`1083 (D.C. Cir. 2001)). In other words, “[t]he entire case on review is a question of law.” Id.
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`(quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. C