District 4 Lodge of the International Association v. Raimondo

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
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
affected by the closure joined as plaintiffs and asked the district
court to postpone the enforcement of the new rule until that court
could finally decide whether the new rule is lawful. The
plaintiffs' preliminary request required the district court to
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
interim should an injunction either be granted or denied. Agreeing
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
issue a stay of the district court order so that the new seasonal
closure would go into effect while the appeal proceeds.
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For the following reasons, we grant the government's
motion. As we will explain, the district court misapprehended the
record and over-stepped its role in rejecting the judgments of the
agency that Congress has charged with protecting endangered marine
mammals. And, while there are serious stakes on both sides,
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
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
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).
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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
population levels, there has long been federal regulation of
certain fisheries aimed at reducing whale buoy and line
entanglement. Most recently, an unexplained uptick in deaths in
20172 prompted the Agency to act anew. It reconvened the Atlantic
Large Whale Take Reduction Team -- which includes members of the
fishing and lobstering industries -- to propose amendments to the
Atlantic Large Whale Take Reduction Plan. The Team, and later the
Agency, considered several types of actions, including certain
restrictions of fishing gear -- like requiring weaker lines -- and
seasonal closure of particularly risky fishing areas.
In deciding which actions to take, the Agency used a
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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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
seasonal closure, as set to go into effect on October 18.
Plaintiffs -- individual lobster harvesters and a
lobstering union -- sued the Agency on September 27, 2021, claiming
that the closure of the restricted area was arbitrary and
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capricious.3 A week later, the plaintiffs moved for a temporary
restraining order and preliminary injunction, seeking to block the
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.
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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
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
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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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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goal that the incidental mortality or serious injury of marine
mammals occurring in the course of commercial fishing operations
be reduced to insignificant levels approaching a zero mortality
and serious injury rate" and requires the Agency to "develop and
implement a take reduction plan," whose "immediate goal" is "to
reduce, within 6 months of its implementation, the incidental
mortality or serious injury of marine mammals incidentally taken
in the course of commercial fishing operations to levels less than
the potential biological removal level established for that
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
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
right whale population consistently experiences annual takes in
excess of its PBR level. In fact, an "annual average of five
entanglement-related mortalities and serious injuries were
4The 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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documented from 2009 through 2018." Final Rule, 86 Fed. Reg. at
51,971. The discrepancy between annual right whale deaths and the
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
harvesting implicates the ESA, in which Congress opted as a matter
of policy to require the Agency to act "whatever the cost." Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (finding that the
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
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
ESA requires the Agency to "conduct intra-service consultation"
when it is "proposing an action that may affect listed species").
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,
solicited public comment on the proposed rule, and considered those
comments -- including all comments from participants or
representatives of the lobster industry -- before finally issuing
the rule.
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
requirement that every aspect of a take plan be discussed by the
Team. Rather, the Team is an advisory body. As the Agency
explained, "While the [Team] provides recommendations, and [the
Agency] makes every effort to incorporate those recommendations,
it is ultimately [the Agency's] responsibility to meet the mandates
of the MMPA." Record of Decision for the FEIS (ROD) 24 (Aug. 30,
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)
(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
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
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
that the Agency's action fell short because it failed to consider
what the district court decreed was an "important aspect of the
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
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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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
the winter months. Its peer reviewed "co-occurrence model"
projected both that some right whales would be present in the
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,
81. So the district court's central criticism based on the fact
that the data showed (as the Agency itself pointed out) that whales
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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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
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
recent gliders operating in offshore Maine waters during December
and January in 2018 and 2019 [that] detected the presence of right
whales, with positive detections within an area in the season and
within the boundaries selected" with the model, FEIS at 81, and
the Agency considered "supplementary acoustic data" on top of the
"data [it] already had on predicted whale density in this area
according to the new 2010 to 2018 model" when developing the
restricted area, ROD at 22. In addition, the Agency went through
an iterative process to narrow the restricted area to the riskiest
area. FEIS at 81 ("The final borders around these areas were drawn
through an iterative process, testing the risk reduction offered
in each version with the [co-occurrence model] and selecting an
area that is robust to annual shifts in predicted whale
distribution without being larger than is necessary.").
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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
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,
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.
Village of Bensenville, 457 F.3d at 71. Accordingly, the Agency's
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.
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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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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Finally, the district court faulted the Agency because
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
Maine. But this conclusion overlooks the problem confronting the
Agency. Scientists cannot trace most known entanglements to
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
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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),
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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
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,
https://apps-nefsc.fisheries.noaa.gov/psb/surveys/Mapperiframe
WithText.html (last accessed Nov. 16, 2021). These data
illustrate the benefits of the Agency's decision to act on the
basis of its model rather than simply assume that no whales are
imperiled in the LMA-1 restricted area during the winter months.
On the whole, the Agency has made a strong showing of
likelihood of success on the merits.
B.
We next turn our attention to the harms that may be
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.
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1.
"[A]ny time a [government] is enjoined by a court from
effectuating statutes enacted by representatives of its people, it
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.,
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
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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.
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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 other hand, there is the harm that will befall
the plaintiffs should the ban apply. One would think that harm
would be much easier to quantify. As discussed, the Agency
estimated that this seasonal closure would impose costs between
roughly $635,000 and $1.25 million.7 Plaintiffs in their briefs
challenge that estimate. But the evidence backing that challenge
is, to say the least, sketchy. It consists of an affidavit
submitted not by any plaintiff, but by a third party who claims
that one plaintiff told her that the seasonal ban will cost his
business $5 million in revenue (it is unclear whether this is
annually or over the life of the closure), while the other
plaintiff told her that the ban would reduce his company's lobster
haul by 1–1.3 million pounds. Olsen Decl. ¶ 17. Neither
individual plaintiff backs up these numbers with any evidence at
all, and neither the plaintiffs nor even their third-party, hearsay
proxy offers any calculations to support these numbers. No witness
claims that any plaintiff will go out of business as a result of
7The district court mistakenly relied on the Agency's
estimation of the annual cost of compliance for the entire
rulemaking -- $9.8–19.2 million -- which covers much more than the
seasonal closure challenged here.
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the plan. Nor is there any evidence in the record to support the
district court's statements suggesting that the new rule will cause
a permanent loss of plaintiff's formal or informal rights to fish
in the closed area even after a possible reopening, if and when
the closure is lifted in coming years.
That being said, even taking just the Agency's
estimates, it is fair to infer that a financial loss of a
relatively small percentage to the industry as a whole will be
borne primarily by those who set traps annually in the restricted
area. And as such we do not doubt that it presents a major
financial hardship for those individuals.
3.
The difficult question, then, is how does one balance
that increased risk of impeding Congress's aims and increasing
right whale fatality against the certain risk of economic harm to
the plaintiffs? In this instance, we answer that question by
looking to Congress for guidance. See Strahan, 127 F.3d at 171;
see also Tenn. Valley Auth., 437 U.S. at 184 (finding that the ESA
embodies Congress's "plain intent . . . to halt and reverse the
trend toward species extinction, whatever the cost").
The plaintiffs identify no case in which we have
permitted an injunction to stand against the government's
authority to implement duly enacted laws, notwithstanding its
strong likelihood of success, let alone in a case in which the
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laws the government seeks to implement are aimed at the protection
of an endangered species and when the only alleged injury is of an
economic kind. See Strahan, 127 F.3d at 171 ("Under the ESA,
however, the balancing and public interest prongs have been
answered by Congress's determination that the 'balance of
hardships and the public interest tips heavily in favor of
protected species.'" (quoting Nat'l Wildlife Fed'n v. Burlington
N. R.R., 23 F.3d 1508, 1510 (9th Cir.1994))); Water Keeper All. v.
U.S. Dep't of Defense, 271 F.3d 21, 34 (1st Cir. 2001)
(differentiating Strahan on the grounds that "the harm asserted by
the navy implicates national security and therefore deserves
greater weight than the economic harm at issue in Strahan").
In this unusual case, our consideration of the competing
harms is also informed by our assessment of the likely outcome of
this litigation. As we have explained, it is likely that the
Agency ruling at issue here will be sustained given the deference
that a court must accord to executive agencies carrying out
congressional mandates. In that event, if any whales are lost --
or presumed lost -- because the ban was stayed, the Agency may
need to modify its actions going forward to make up for what it
had expected to be gains made this year. See BiOp at 7. Any such
actions could operate more harshly on harvesters by having to
achieve the same aggregate results in fewer years. In this
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respect, prevailing on the stay could cause lobster harvesters
additional harm.
For all of these reasons, while recognizing the burden
placed on the plaintiffs by the Agency's ruling, we find that
leaving the injunction in place during the course of this appeal
will likely cause irreparable harm in the form of preventing a
federal agency from undertaking its congressionally assigned task
of assuring the right whales are protected from a critical risk of
death. And in so requiring, Congress has effectively declared the
public interest and weighed the equities in accord with the balance
struck by the Agency. Strahan, 127 F.3d at 171. Whether the
statutory framework that requires this result should be changed is
up to Congress, not the courts.
III.
For the foregoing reasons, the Agency's motion for a
stay pending appeal is granted, and, consequently, the
intervenors' parallel motion is denied as moot.
While retaining jurisdiction over the appeal of the
preliminary injunction on the merits, we remand to the district
court to resolve, if necessary, any disputes concerning the prompt
removal of the banned gear from the LMA-1 restricted area. Given
the already lost time and the short period remaining for the
seasonal closure, we encourage the parties to act promptly.
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