`
`United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 21-1873
`
`DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS
`AND AEROSPACE WORKERS LOCAL LODGE 207; DAMON FAMILY LOBSTER
`COMPANY, INC.; FOX ISLAND LOBSTER COMPANY, LLC; FRANK THOMPSON,
`
`Plaintiffs, Appellees,
`
`v.
`
`GINA M. RAIMONDO, in her official capacity as Secretary of the
`United States Department of Commerce; JANET COIT, in her
`official capacity as Assistant Administrator of the NOAA
`Fisheries; NATIONAL MARINE FISHERIES SERVICE,
`
`Defendants, Appellants.
`
`
`
`No. 21-1874
`
`DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS
`AND AEROSPACE WORKERS LOCAL LODGE 207; DAMON FAMILY LOBSTER
`COMPANY, INC.; FOX ISLAND LOBSTER COMPANY, LLC; FRANK THOMPSON,
`
`Plaintiffs, Appellees.
`
`v.
`
`CENTER FOR BIOLOGICAL DIVERSITY; CONSERVATION LAW FOUNDATION,
`INC.; DEFENDERS OF WILDLIFE,
`
`Intervenor-Defendants, Appellants.
`
`
`
`
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`
`[Hon. Lance E. Walker, U.S. District Judge]
`
`
`
`
`
`
`
`
`
`Before
`
`Kayatta, Barron, and Gelpí,
`Circuit Judges.
`
`
`
`
`Erika B. Kranz, Todd Kim, Assistant Attorney General, Andrew
`
`C. Mergen, Alison C. Finnegan, and Taylor A. Mayhall on brief for
`appellants Gina M. Raimondo, Janet Coit, and National Marine
`Fisheries Service.
`
`Kristen Monsell, Erika A. Fuller, and Jane P. Davenport on
`brief for intervenor-appellants Center for Biological Diversity,
`Conservation Law Foundation, Inc., and Defenders of Wildlife.
`
`Jay P. McCloskey, Paula D. Silsby, Thimi R. Mina, Alfred C.
`Frawley IV, and McCloskey, Mina, Cunniff & Frawley, LLC on brief
`for appellees District 4 Lodge of the International Association of
`Machinists and Aerospace Workers Local Lodge 207, Damon Family
`Lobster Company, Inc., Fox Island Lobster Company, LLC, and Frank
`Thompson.
`
`Ryan P. Steen, Stoel Rives LLP, Mary Anne Mason, General
`Counsel, Maine Lobsterman's Association, Jane C. Luxton, Kip J.
`Adams, and Lewis Brisbois Bisgaard & Smith LLP on brief for Maine
`Lobsterman's Association, amicus curiae.
`
`
`
`November 16, 2021
`
`
`
`
`
`
`
`
`
`KAYATTA, Circuit Judge. This case pits the Maine lobster
`
`industry against a federal environmental agency seeking to save
`
`the endangered North Atlantic right whale from extinction. Earlier
`
`this year, the National Marine Fisheries Service (the "Agency")
`
`issued a rule barring, from October to January each year, the most
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`frequently employed methods of lobstering in a roughly 967 square
`
`mile area of the Atlantic Ocean thirty or so nautical miles off
`
`the Maine coast. The Agency implemented this new seasonal closure
`
`to reduce the risk that a right whale would become entangled in
`
`the ropes connecting lobster traps to buoys. Prior to the closure
`
`going into effect, several individuals and an organization
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`affected by the closure joined as plaintiffs and asked the district
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`court to postpone the enforcement of the new rule until that court
`
`could finally decide whether the new rule is lawful. The
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`plaintiffs' preliminary request required the district court to
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`predict how likely it is to find the new rule unlawful at the end
`
`of the case and to consider now what harms might result in the
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`interim should an injunction either be granted or denied. Agreeing
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`with the plaintiffs, the district court put the new rule on ice.
`
`The government then appealed. It argues on the merits
`
`that the district court should not have issued its preliminary
`
`injunction. By separate motion, the government also asks us to
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`issue a stay of the district court order so that the new seasonal
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`closure would go into effect while the appeal proceeds.
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`- 3 -
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`For the following reasons, we grant the government's
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`motion. As we will explain, the district court misapprehended the
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`record and over-stepped its role in rejecting the judgments of the
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`agency that Congress has charged with protecting endangered marine
`
`mammals. And, while there are serious stakes on both sides,
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`Congress has placed its thumb on the scale for the whales.
`
`I.
`
`Congress enacted the Marine Mammal Protection Act nearly
`
`fifty years ago to ensure that marine mammals -- like the North
`
`Atlantic right whale -- are not "permitted to diminish beyond the
`
`point at which they cease to be a significant functioning element
`
`in the ecosystem of which they are a part." 16 U.S.C. § 1361(2).
`
`In 2019, the Agency estimated there were no more than 368 right
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`whales left in the ocean, and the Agency has determined that no
`
`more than eight right whales, on average, can be "taken" every ten
`
`years if they are to reach their optimum sustainable population.1
`
`In other words, even one additional death a year increases the
`
`odds that the right whale will go extinct.
`
`Entanglement in trap lines is a leading cause of serious
`
`injury and death in right whales, who otherwise live on average
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`for four to seven decades. Nat'l Marine Fisheries Serv.,
`
`
`1 "Take" is a term of art meaning, in brief, an action that
`captures, kills, or has the potential to injure a marine mammal,
`or one that has the potential to disrupt its behavioral pattern.
`16 U.S.C. § 1362(13), (18).
`
`- 4 -
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`
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`Biological Opinion (BiOp) 80, 136 (May 27, 2021). The Agency
`
`estimates that just under five right whales per year suffer serious
`
`injury or death due to entanglement in federally regulated
`
`fisheries.
`
`Because of the critical nature of the right whale's
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`population levels, there has long been federal regulation of
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`certain fisheries aimed at reducing whale buoy and line
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`entanglement. Most recently, an unexplained uptick in deaths in
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`20172 prompted the Agency to act anew. It reconvened the Atlantic
`
`Large Whale Take Reduction Team -- which includes members of the
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`fishing and lobstering industries -- to propose amendments to the
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`Atlantic Large Whale Take Reduction Plan. The Team, and later the
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`Agency, considered several types of actions, including certain
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`restrictions of fishing gear -- like requiring weaker lines -- and
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`seasonal closure of particularly risky fishing areas.
`
`In deciding which actions to take, the Agency used a
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`peer-reviewed "Decision Support Tool" (the "model"). The model
`
`identifies so-called "hotspots" where right whales are most in
`
`danger based on where vertical buoy lines are likely to be, how
`
`strong those lines are likely to be, and where whales are likely
`
`to be. Nat'l Marine Fisheries Serv., Final Environmental Impact
`
`
`2 In 2017, seventeen right whale deaths were documented, and
`new information demonstrated a downward trend in the species'
`population since 2010.
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`- 5 -
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`
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`Statement (FEIS) 73–74 (June 2021). An area may be a hotspot even
`
`if only a few whales are predicted to be there if there are a
`
`plethora of strong vertical fishing lines. The Agency employed
`
`these inputs "because entanglement risk only exists when lines are
`
`present, whales are present, and the lines pose a risk to whales."
`
`Taking of Marine Mammals Incidental to Commercial Fishing
`
`Operations; Atlantic Large Whale Take Reduction Plan Regulations
`
`("Final Rule"), 86 Fed. Reg. 51,970, 51,991 (Sept. 17, 2021).
`
`Thus, "if any of these three factors are not present, the risk of
`
`entanglement [from the model] is zero." Id.
`
`Based on this model, one of the actions the Agency
`
`proposed was to restrict fishing with buoy lines from October 18
`
`to January 31 in a roughly 967 square mile area of the Atlantic
`
`Ocean thirty or so nautical miles off the Maine coast ("LMA 1
`
`restricted area"). Representatives of the lobster industry issued
`
`comments questioning the inputs of the model, whether any whales
`
`are likely to enter that area, and whether there had been any
`
`concrete data of a right whale being injured by buoy lines in that
`
`area. On August 31, 2021, the Agency issued a final rule in which
`
`it responded to these comments but nevertheless retained the
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`seasonal closure, as set to go into effect on October 18.
`
`Plaintiffs -- individual lobster harvesters and a
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`lobstering union -- sued the Agency on September 27, 2021, claiming
`
`that the closure of the restricted area was arbitrary and
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`- 6 -
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`capricious.3 A week later, the plaintiffs moved for a temporary
`
`restraining order and preliminary injunction, seeking to block the
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`seasonal closure from going into effect. After briefing and a
`
`hearing, the district court agreed that the plaintiffs are likely
`
`to succeed on the merits. It found that the Agency likely acted
`
`arbitrarily and capriciously by closing the fishery "based on what
`
`appears to be a markedly thin statistical modeling methodology,"
`
`which "ignored . . . whether right whales actually aggregate in
`
`the" restricted area. It concluded that while the Agency has the
`
`authority to impose the seasonal closure, it could not do so until
`
`"traditional" evidence "either substantiate[s] or contradict[s]
`
`its modeling effort."
`
`The district court then found that the plaintiffs met
`
`their burden (for preliminary relief) to show irreparable injury
`
`because their compliance cost is "significant" and because the
`
`rule would result in the "permanent loss of their existing fishing
`
`grounds." Finally, the district court concluded that the public
`
`interest was on the plaintiffs' side -- despite the fact that it
`
`generally "tips heavily in favor of protected species," Strahan v.
`
`
`3 Once plaintiffs sued the Agency, several conservation
`groups with an interest in protecting the right whale intervened.
`Those groups -- Conservation Law Foundation, Defenders of
`Wildlife, and Center for Biological Diversity -- are parties to
`this appeal and have filed their own motion for a stay. Given our
`disposition of the Agency's motion, we will deny the conservation
`groups' motion as moot.
`
`- 7 -
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`
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`Coxe, 127 F.3d 155, 171 (1st Cir. 1997) -- because "there is an
`
`overriding public interest in insisting on orderly and
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`epistemically sound rulemaking that members of the public have
`
`reason to believe is grounded in reality." Based on those
`
`findings, the district court enjoined the seasonal closure from
`
`going into effect two days before it was set to do so.
`
`The Agency appealed and moved the district court for a
`
`stay pending appeal, in essence asking the district court to permit
`
`the closure to go into effect while it sought review of the
`
`preliminary injunction order. The district court denied that
`
`motion two weeks later. The same day, the Agency moved for similar
`
`relief in this court. After a review of the record and a
`
`consideration of the stay factors, we now grant the Agency's
`
`motion.
`
`II.
`
`In ruling on a motion for a stay pending appeal, we
`
`consider "(1) [w]hether the stay applicant has made a strong
`
`showing that it is likely to succeed on the merits, (2) whether
`
`the applicant will be irreparably injured absent a stay,
`
`(3) whether [the] issuance of the stay will substantially injure
`
`the other parties interested in the proceeding, and (4) where the
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`public interest lies." Common Cause R.I. v. Gorbea, 970 F.3d 11,
`
`14 (1st Cir. 2020) (second alteration in original) (quoting Nken
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`- 8 -
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`
`
`
`
`v. Holder, 556 U.S. 418, 426 (2009)). "The first two factors 'are
`
`the most critical.'" Id. (quoting Nken, 556 U.S. at 426).
`
`A.
`
`Determining the likelihood of the Agency's success in
`
`this appeal requires us to determine the likelihood that the
`
`district court itself erred in issuing a preliminary injunction.
`
`To the extent the district court's ruling rested on findings of
`
`fact, we defer to those findings absent clear error; we review any
`
`questions of law de novo, without deference. Swarovski
`
`Aktiengesellschaft v. Bldg. No. 19, Inc., 704 F.3d 44, 48 (1st
`
`Cir. 2013).
`
`We begin with the clear policy choices made by Congress
`
`in instructing the Agency to protect right whales, even if that
`
`protection causes harm to commercial fishing operations. We do
`
`not make policy determinations; the branches accountable to voters
`
`do that. Rather, we serve as a backstop to ensure an executive
`
`agency does not act arbitrarily and capriciously or not in
`
`accordance with law. 5 U.S.C. § 706(2)(A).
`
`Two statutes call for the Agency to take swift action to
`
`protect the endangered right whale: Section 7 of the Endangered
`
`Species Act (ESA) requires the Agency to ensure that its fishing
`
`licenses are "not likely to jeopardize the continued existence of
`
`any endangered species." 16 U.S.C. § 1536(a)(2). The Marine
`
`Mammal Protection Act (MMPA), in turn, makes it "the immediate
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`- 9 -
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`
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`goal that the incidental mortality or serious injury of marine
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`mammals occurring in the course of commercial fishing operations
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`be reduced to insignificant levels approaching a zero mortality
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`and serious injury rate" and requires the Agency to "develop and
`
`implement a take reduction plan," whose "immediate goal" is "to
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`reduce, within 6 months of its implementation, the incidental
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`mortality or serious injury of marine mammals incidentally taken
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`in the course of commercial fishing operations to levels less than
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`the potential biological removal level established for that
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`stock." 16 U.S.C. § 1387(a)(1), (f)(2), (f)(5). Indeed, the MMPA
`
`requires the Agency "to assist in the recovery or prevent the
`
`depletion of" endangered marine mammals that "interact[] with
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`commercial fisheries." Id. § 1387(f)(1).
`
`The potential biological removal (PBR) level for the
`
`right whale is currently 0.8, which means that the removal of more
`
`than eight individuals every ten years (i.e., an average of 0.8 per
`
`year) threatens the species' ability to reach its optimal
`
`sustainable population level.4 Of all the large whales, only the
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`right whale population consistently experiences annual takes in
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`excess of its PBR level. In fact, an "annual average of five
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`entanglement-related mortalities and serious injuries were
`
`
`4 The PBR levels of marine mammals are also determined by the
`Agency, and we note that plaintiffs do not challenge this number
`here.
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`- 10 -
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`
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`
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`documented from 2009 through 2018." Final Rule, 86 Fed. Reg. at
`
`51,971. The discrepancy between annual right whale deaths and the
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`species' PBR level required the Agency to act. 16 U.S.C.
`
`§ 1387(f)(7)(F). And, because the trend is "toward species
`
`extinction," the licensing of the federal fisheries for lobster
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`harvesting implicates the ESA, in which Congress opted as a matter
`
`of policy to require the Agency to act "whatever the cost." Tenn.
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`Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (finding that the
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`ESA embodies Congress's "plain intent" to "halt and reverse the
`
`trend toward species extinction, whatever the cost" (emphasis
`
`added)); see also 16 U.S.C. § 1361(6) (requiring the Agency to
`
`ensure endangered marine mammals, including the right while, are
`
`"protected and encouraged to develop to the greatest extent
`
`feasible").
`
`Whenever an administrative agency acts, it must follow
`
`the applicable administrative rules of procedure. See 5 U.S.C.
`
`§ 553 (detailing requirements for agency rulemaking); 16 U.S.C.
`
`§ 1387(f) (detailing requirements for agency action when an
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`endangered marine mammal is being taken at a rate higher than its
`
`PBR level); see also BiOp at 1 (explaining that section 7 of the
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`ESA requires the Agency to "conduct intra-service consultation"
`
`when it is "proposing an action that may affect listed species").
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`Here, though, the plaintiffs offer no reason to question the
`
`Agency's compliance with these procedural requirements. Most
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`importantly, the Agency proposed and explained its new rule,
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`solicited public comment on the proposed rule, and considered those
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`comments -- including all comments from participants or
`
`representatives of the lobster industry -- before finally issuing
`
`the rule.
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`The district court (in passing) and the plaintiffs on
`
`appeal complain that the seasonal-closure regulation did not go
`
`through a collaborative process with the Atlantic Large Whale Take
`
`Reduction Team (the "Team"), but no party points us to any
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`requirement that every aspect of a take plan be discussed by the
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`Team. Rather, the Team is an advisory body. As the Agency
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`explained, "While the [Team] provides recommendations, and [the
`
`Agency] makes every effort to incorporate those recommendations,
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`it is ultimately [the Agency's] responsibility to meet the mandates
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`of the MMPA." Record of Decision for the FEIS (ROD) 24 (Aug. 30,
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`2021); see also 16 U.S.C. § 1387(f)(7)(B)(i) (permitting the
`
`Agency to make "changes . . . with an explanation of the reasons"
`
`to any plan drafted by the Team); id. § 1387(f)(7)(B)(ii)
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`(requiring the Agency to publish its own "proposed take reduction
`
`plan and implementing regulations" if the Team "does not submit a
`
`draft plan . . . within 6 months").
`
`With Congress having thus mandated action to protect the
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`right whale from commercial fishing, and with plaintiffs pointing
`
`to no procedural failure by the Agency in deciding what action to
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`take, the district court had only a narrow role to play. A court
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`can set aside an otherwise proper agency action if it is arbitrary
`
`and capricious or if it is not based on substantial evidence.5 5
`
`U.S.C. § 706(2)(A), (E). The district court found that plaintiffs
`
`had made a showing that the Agency rule in this case was likely
`
`arbitrary and capricious. In so doing, the district court claimed
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`that the Agency's action fell short because it failed to consider
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`what the district court decreed was an "important aspect of the
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`problem," see Upper Blackstone Water Pollution Abatement Dist. v.
`
`EPA, 690 F.3d 9, 20 (1st Cir. 2012) (quoting Motor Vehicle Mfrs.
`
`Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)),
`
`namely "whether right whales actually aggregate in the LMA 1
`
`Restricted Area." The court explained that that the Agency
`
`"predicts the presence of right whales during the LMA 1 closure
`
`period in spring" and that "the warming of the Gulf of Maine has
`
`shifted right whales 'south of New England and Long Island in the
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`fall and winter.'" (quoting BiOp at 187). From those observations,
`
`the court concluded that the Agency likely did not time the closure
`
`to coincide with the presence of whales.
`
`
`5 The Supreme Court "has described the APA court/agency
`'substantial evidence' standard as requiring a court to ask
`whether a 'reasonable mind might accept' a particular evidentiary
`record as 'adequate to support a conclusion.'" Dickinson v. Zurko,
`527 U.S. 150, 162 (1999) (quoting Consol. Edison Co. v. NLRB, 305
`U.S. 197, 229 (1938)).
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`- 13 -
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`That reasoning constituted a fundamental misapprehension
`
`of the Agency's analysis. Whale death by entanglement requires
`
`the intersection of two objects: a line and a whale. As the Agency
`
`explained, and as its model assumes, the risk of entanglement
`
`therefore varies based on the number of lines and the number of
`
`whales in a given area. A large number of whales can certainly
`
`pose a significant risk in the presence of even relatively few
`
`lines, but just a few whales can also pose a significant risk in
`
`the presence of a large number of lines.
`
`This type of scenario -- few whales/many lines -- was
`
`just what the Agency confronted in the LMA 1 restricted area during
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`the winter months. Its peer reviewed "co-occurrence model"
`
`projected both that some right whales would be present in the
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`winter months, FEIS at 81, and that the proliferation of trap lines
`
`would pose a substantial risk to those whales, see FEIS at 73, 78,
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`81. So the district court's central criticism based on the fact
`
`that the data showed (as the Agency itself pointed out) that whales
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`only aggregated in the area at other times provides no basis for
`
`rejecting the Agency's findings.
`
`The district court also criticized the agency's use of
`
`its "co-occurrence model" absent a better explanation of the
`
`inputs, and the court made no bones about the fact that it would
`
`prefer to have -- and indeed require -- "traditional," concrete
`
`evidence of right whales within the restricted area. But an agency
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`- 14 -
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`may use a model in determining what actions will likely achieve
`
`its goals. Scientists regularly use models to understand complex
`
`interactions and predict likely future occurrences (like, for
`
`example, the weather in two days). The use of a model is reasonable
`
`where it reflects "the best information available when [the agency]
`
`began its analysis," and where it has "check[ed] the assumptions
`
`of those models as new information became available." Village of
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`Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006). The Agency
`
`appears to have done both here. The model included "[d]ata from
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`recent gliders operating in offshore Maine waters during December
`
`and January in 2018 and 2019 [that] detected the presence of right
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`whales, with positive detections within an area in the season and
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`within the boundaries selected" with the model, FEIS at 81, and
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`the Agency considered "supplementary acoustic data" on top of the
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`"data [it] already had on predicted whale density in this area
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`according to the new 2010 to 2018 model" when developing the
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`restricted area, ROD at 22. In addition, the Agency went through
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`an iterative process to narrow the restricted area to the riskiest
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`area. FEIS at 81 ("The final borders around these areas were drawn
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`through an iterative process, testing the risk reduction offered
`
`in each version with the [co-occurrence model] and selecting an
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`area that is robust to annual shifts in predicted whale
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`distribution without being larger than is necessary.").
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`- 15 -
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`The Agency also included in the model the new data
`
`regarding a post-2010 shift in right whale migrating patterns, yet
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`the model "still showed substantial risk reduction occurring in
`
`these hotspots suggesting these areas remain relatively important
`
`between 2010 and 2018." FEIS at 81. And it obtained favorable,
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`independent peer review of the model by knowledgeable scientists.
`
`Id. at 74–75. Thus, the Agency did everything it was supposed to
`
`do when using a model: It relied on the best evidence it had
`
`available and updated the inputs as new information emerged.
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`Village of Bensenville, 457 F.3d at 71. Accordingly, the Agency's
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`use of the model very likely was not arbitrary and capricious, and
`
`the resulting regulation appears to be supported by substantial
`
`evidence. See United States v. Carlo Bianchi & Co., 373 U.S. 709,
`
`715 (1963) (explaining that the "'substantial evidence' . . .
`
`standard goes to the reasonableness of what the agency did on the
`
`basis of the evidence before it, for a decision may be supported
`
`by substantial evidence even though it could be refuted by other
`
`evidence that was not presented to the decision-making body").
`
`The district court also faulted the Agency for simply
`
`not waiting for further "concrete" evidence of whales in the area.
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`But the Agency persuades us, at least preliminarily, that Congress
`
`did not require the Agency to wait for more data, much less to
`
`wait until the whales are swimming among an aggregation of life-
`
`threatening lines. See 16 U.S.C. § 1387(f)(7) (requiring quick
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`- 16 -
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`action when "the human-caused mortality and serious injury [of the
`
`right whale] is estimated to be equal to or greater than
`
`[its] potential biological removal level . . .
`
`and [the
`
`whale] interacts with a fishery."); see also Brower v. Evans, 257
`
`F.3d 1058, 1070 (9th Cir. 2001) ("Scientific findings in marine
`
`mammal conservation area are often necessarily made from
`
`incomplete or imperfect information."). See generally FCC v.
`
`Prometheus Radio Project, 141 S. Ct. 1150, 1160 (2021) ("[It] is
`
`not unusual in day-to-day agency decisionmaking within the
`
`Executive Branch" for an agency to lack "perfect empirical or
`
`statistical data.").
`
`The district court expressed concern that, by
`
`considering both the density of whales in an area and the density
`
`of dangerous buoy lines, the model might "simply use[] math in a
`
`manner that makes a reduction in line density appear statistically
`
`meaningful even in the absence of passing whales." But the Agency
`
`explained that was not how the model worked. Final Rule, 86 Fed.
`
`Reg. at 51,991 ("It is appropriate for the threat model to be
`
`equally weighted with line and whale density because entanglement
`
`risk only exists when lines are present, whales are present, and
`
`the lines pose a risk to whales. If any of these three factors
`
`are not present, the risk of entanglement is zero." (emphasis
`
`added)).
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`- 17 -
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`Finally, the district court faulted the Agency because
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`the "available record of known large whale entanglements . . .
`
`between 2010 and 2019 offers little to support outright closure of
`
`LMA 1," as none of the known cases have come from the Gulf of
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`Maine. But this conclusion overlooks the problem confronting the
`
`Agency. Scientists cannot trace most known entanglements to
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`specific fisheries. BiOp at 216 ("Assignment of an observed
`
`entanglement event to a specific fishery or country of origin is
`
`rarely possible."); Final Rule, 86 Fed. Reg. at 51,976 ("Out of
`
`approximately 1.24 million buoy lines within the Northeast waters
`
`from Rhode Island to Maine, we estimate that 72 percent of buoy
`
`lines were unmarked under current [take reduction plan] gear
`
`marking guidelines although that percentage was reduced when Maine
`
`required gear marks on lobster trap buoy lines beginning in
`
`September 2020."). And, because many whale carcasses are never
`
`recovered, there are even more entanglements that are unknown.
`
`BiOp at 212 ("Some whale mortalities may never be observed; thus,
`
`the annual observed entanglement-related mortalities are likely
`
`less than the actual number of entanglement-related mortalities
`
`occurring."); see also FEIS at 55–56 ("[M]any entanglements are
`
`never seen by humans, even when seen there is often no gear present
`
`on whales showing scars, wounds and injuries clearly caused by
`
`entanglement, gear cannot always be recovered from those whales
`
`that are seen entangled, and even when gear is recovered, it can
`
`- 18 -
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`
`
`
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`rarely be identified to a source fishery, and even more rarely to
`
`a precise fishing location. . . . [T]herefore, most entanglement
`
`related mortality and serious injury are unassigned.").
`
`Accordingly, the lack of a specific case of entanglement
`
`attributable to a given area does not mean none have happened in
`
`that area or that there is no risk one will happen there in the
`
`future. That is precisely why the Agency developed the model and
`
`subjected its key inputs to review and comment. And the result
`
`accords with common sense: Entanglements are a function of whales
`
`swimming near lines, with the likelihood of a death increasing as
`
`the number of either increases.
`
`None of this is to discount entirely the district court's
`
`correct observation that the modeling employed by the Agency, in
`
`several important instances, relied on estimates of uncertain
`
`events (such as entanglement risks in given areas), rather than
`
`hard, verifiable numbers. We see no scientific basis, though, for
`
`categorically rejecting an agency's use of well-considered
`
`estimates. See generally H.C. von Baeyer, The Fermi Solution:
`
`Essays on Science 3–12 (1993). Importantly, the Agency subjected
`
`its estimates to peer review and, as we have discussed, supra, did
`
`indeed explain how its estimates comported with and were derived
`
`from the hard data that was available.
`
`Trying to leverage the case for demanding more hard data
`
`(and perhaps to undercut the Agency's case for irreparable harm),
`
`- 19 -
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`
`
`
`
`the plaintiffs have asked that we go outside the record to consider
`
`the acoustic data from a glider mission that occurred in
`
`October 2021, which did not find evidence of right whales near the
`
`restricted area. They claim that this undermines the Agency's
`
`model. We take the plaintiffs' invitation to look at recent
`
`acoustic data, but find it cuts the other way. More recent
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`acoustic data posted on the NOAA website shows just what the Agency
`
`modeling predicted: right whale acoustics in and around the LMA 1
`
`restricted area. See NOAA, Right Whale Sighting Advisory System,
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`https://apps-nefsc.fisheries.noaa.gov/psb/surveys/Mapperiframe
`
`WithText.html (last accessed Nov. 16, 2021). These data
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`illustrate the benefits of the Agency's decision to act on the
`
`basis of its model rather than simply assume that no whales are
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`imperiled in the LMA-1 restricted area during the winter months.
`
`
`
`
`
`On the whole, the Agency has made a strong showing of
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`likelihood of success on the merits.
`
`B.
`
`We next turn our attention to the harms that may be
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`suffered depending on whether the closure is enjoined during this
`
`appeal. As a practical matter, this discussion also addresses to
`
`the extent necessary the balance of equities and the public
`
`interest.
`
`- 20 -
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`
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`
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`1.
`
`"[A]ny time a [government] is enjoined by a court from
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`effectuating statutes enacted by representatives of its people, it
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`suffers a form of irreparable injury." Maryland v. King, 567 U.S.
`
`1301, 1303 (2012) (Roberts, C.J., in chambers) (second alteration
`
`added) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
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`434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)); see also
`
`Thompson v. DeWine, 976 F.3d 610, 619 (6th Cir. 2020); Org. for
`
`Black Struggle v. Ashcroft, 978 F.3d 603, 609 (8th Cir. 2020);
`
`N.M. Dep't of Game & Fish v. U.S. Dep't of the Interior, 854 F.3d
`
`1236, 1254–55 (10th Cir. 2017); Planned Parenthood of Greater Tex.
`
`Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir.
`
`2013).
`
`Here, moreover, the enjoined agency action is aimed at
`
`effectuating a congressional command to avoid licensing activity
`
`that may itself cause irreparable harm: the extinction of a marine
`
`mammal species. Right whales appear to have been killed in recent
`
`years by entanglement at a rate that will lead to their extinction.
`
`The Agency rule is intended to take a major, but not yet
`
`sufficient, step in reducing those deaths. The Agency's model
`
`estimates that the new rule, of which the seasonal ban in the LMA-
`
`1 restricted area is a part, will reduce deaths by entanglement by
`
`60%, to an annual average of 2.69 whales. Compare N. Atl. Right
`
`Whale Conservation Framework, BiOp App'x A at 478 (explaining that
`
`- 21 -
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`
`
`
`
`the 2021 rulemaking is "focused on 60% reduction in right whale
`
`[takes] incidental to the American lobster and Jonah crab trap/pot
`
`fisheries. In federal waters, this action reduces [takes] from
`
`entanglement, on average annually, to 2.69."), with FEIS at 76
`
`tbl.3.1 (labeling the 60% as "risk reduction").6 The seasonal ban
`
`at issue here accounts for over 10% of that reduction, which would
`
`seem to approximate roughly one whale saved every three or four
`
`years. See ROD at 21. While the risk reduction attributable to
`
`the challenged seasonal closure seems small -- 6.6% -- it is an
`
`important part of a larger, interrelated regulatory scheme. As
`
`the Agency explained, "[i]ndividual risk reduction associated with
`
`one measure is not as accurate as the combined risk reduction of
`
`measures implemented together because it does not account for
`
`changes in line numbers or distribution associated with other
`
`measures nearby." ROD at 21. Thus, "[w]ithout this area, the
`
`[regulatory rule] would likely not meet the minimum risk reduction
`
`target needed to reduce mortality and serious injury of right
`
`whales below PBR." Id. On top of that, the 2021 Rule is just the
`
`first step in a 10-year plan aimed at trying to turn the trajectory
`
`of the right whale around. See, e.g., id. at 59–60 (explaining
`
`
`6 The percentage rises to 69% if action already taken to
`restrict harvesting in the ocean off of Massachusetts is taken
`into consideration. Even that percentage falls short of the
`Agency's "upper target" of 80%, and short of what the Agency
`expects will be needed to lower the annual deaths below the PBR
`more quickly. FEIS at 5.
`
`- 22 -
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`
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`
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`that it "may require up to 92 percent . . . to reduce actual
`
`estimated mortality and serious injury below PBR," given "recent
`
`mortality conditions").
`
`2.
`
`On the othe
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