Conservation Law Foundation v. Ross

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONSERVATION LAW FOUNDATION,
Plaintiff,
v. Civil Action No. 18-1087 (JEB)
WILBUR ROSS, in his official capacity as
Secretary of Commerce, et al.,
Defendants,
and
FISHERIES SURVIVAL FUND,
Defendant-Intervenor.
MEMORANDUM OPINION
Demonstrating that “there is no folly of the beasts of the earth which is not infinitely
outdone by the madness of men,” Herman Melville, Moby Dick 262 (W.W. Norton & Co. 1967)
(1851), humans have brought the North Atlantic right whale to the brink of extinction. As of the
release of this Opinion, only about 400 of these leviathans remain. In April 2018, the National
Marine Fisheries Service promulgated a comprehensive Habitat Amendment, which altered rules
governing New England’s fisheries. Among other measures, the Amendment opened two large
swaths of the whales’ feeding grounds to one of their most dangerous predators: gillnet fishing
gear. Plaintiff Conservation Law Foundation challenged this final rule, contending that NMFS
implemented it in dereliction of its Congressional mandate to “insure that any action authorized,
funded, or carried out by [any federal] agency . . . is not likely to jeopardize the continued
existence of any endangered species.” 16 U.S.C. § 1536(a)(2). In what is ultimately not a close
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call, the Court concludes that NMFS has violated not only the Endangered Species Act but also
the Magnuson-Stevens Act. The Court further finds that the appropriate remedy for this
violation is an injunction restoring prohibitions on gillnet gear in the two formerly closed areas.
I. Background
Because a violation of Section 7(a)(2) of the Endangered Species Act would give rise to
causes of action under not only the ESA but also the Magnuson-Stevens Act — indeed, CLF
alleges both, see ECF No. 38 (Plaintiff Renewed Motion for Summary Judgment) at 1; ECF No.
1 (Complaint), ¶ 1 — the Court begins by laying out the statutory framework before proceeding
to the factual background. While Plaintiff also brings a claim under the Administrative
Procedure Act, “the APA permits courts to review ‘final agency action for which there is no
other adequate remedy in a court,’” and “[h]ere, the ESA’s citizen-suit provision provides an
adequate remedy.” Conservation Force v. Salazar, 715 F. Supp. 2d 99, 104 n.6 (D.D.C. 2010)
(quoting 5 U.S.C. § 704); accord Bennett v. Spear, 520 U.S. 154, 161–62 (1997) (“Although
petitioners contend that their claims lie both under the ESA and the APA, . . . the APA by its
terms independently authorizes review only when ‘there is no other adequate remedy in a
court.’”) (quoting 5 U.S.C. § 704). The Court, consequently, need not separately address the
APA.
A. Statutory Framework
1. Endangered Species Act
Congress enacted the ESA in 1973 “to halt and reverse the trend toward species
extinction, whatever the cost.’” Nat’l Ass’n of Home Builders v. U.S. Fish and Wildlife Serv.,
786 F.3d 1050, 1052 (D.C. Cir. 2015) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184
(1978)). Section 7(a)(2) of the Act requires that “[e]ach Federal agency . . . insure that any
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action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the
continued existence of any endangered species.” 16 U.S.C. § 1536(a)(2). The accompanying
regulations specify:
Each Federal agency shall review its actions at the earliest possible
time to determine whether any action may affect listed species or
critical habitat. If such determination is made, formal consultation
is required, except . . . if, as a result of informal consultation with
the Service under § 402.13, the Federal agency determines . . . that
the proposed action is not likely to adversely affect any listed species
or critical habitat.
50 C.F.R. § 402.14(a)–(b). (As an aside, there are other, limited escape hatches from formal
consultation not relevant to this case. Id. § 402.14(b)(1)–(2).)
In other words, the first step is for the “action agency” — in this case, the Sustainable
Fisheries Division (SFD) of NMFS — to determine whether its action “may affect” a listed
species (or critical habitat). If the answer to that question is yes, the action agency must engage
in either informal or formal consultation with the “expert agency” — in this case, the Protected
Resources Division (PRD) of NMFS — as to the effects of the proposed action on the listed
species. If, through informal consultation, the expert agency can determine “that the action is not
likely to adversely affect listed species,” it may issue a “written concurrence” to that effect, thus
ending the action agency’s ESA-consultation duties. Id. § 402.13. If, however, the expert
agency does not so find, formal consultation is required. Id. § 402.14(c).
The end product of formal consultation is a “biological opinion” by the expert agency,
which offers its determination as to “whether the action is likely to jeopardize the continued
existence of a listed species . . . (a ‘jeopardy’ biological opinion); or, the action is not likely to
jeopardize the continued existence of a listed species . . . (a ‘no jeopardy’ biological opinion).”
Id. § 402.14(h)(3). If the opinion is a “jeopardy” one, it must either set out “reasonable and
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prudent alternatives” to the agency action or otherwise “indicate that to the best of [the agency’s]
knowledge there are no reasonable and prudent alternatives.” Id. If the opinion is a “no
jeopardy” one, the agency action may proceed.
The ESA also contains a citizen-suit provision “of remarkable breadth.” Bennett, 520
U.S. at 164. It authorizes “any person . . . to enjoin any person, including the United States and
any other governmental instrumentality or agency[,] . . . who is alleged to be in violation of any
provision of [the ESA] or regulation issued under the authority thereof.” 16 U.S.C.
§ 1540(g)(1)(A).
2. Magnuson-Stevens Act
Plaintiff’s second cause of action falls under the Magnuson-Stevens Act. The MSA was
passed in 1976 to “balance[] the twin goals of conserving our nation’s aquatic resources and
allowing U.S. fisheries to thrive.” Oceana, Inc. v. Pritzker, 26 F. Supp. 3d 33, 36 (D.D.C. 2014).
In service of those ends, the Act delegates to the Secretary of Commerce, who has delegated to
NMFS, the responsibility of managing the eight regional Fishery Management Councils created
by the MSA and charged with creating Fishery Management Plans (FMPs). Id. at 36–37. As
explained in more detail below, it was the promulgation by SFD of a final rule implementing
changes recommended by the New England Fishery Management Council that constitutes the
“agency action” in this case. See 83 Fed. Reg. 15,240, 15,240 (Apr. 9, 2018).
As relevant here, Section 304(a)(1)(A) of the MSA requires the Secretary to
“immediately commence a review” of any “fishery management plan or plan amendment” in
order to “determine whether it is consistent with . . . any . . . applicable law.” 16 U.S.C.
§ 1854(a)(1)(A) (emphasis added). So if, in promulgating an FMP amendment, NMFS fails to
determine whether the amendment is consistent with Section 7(a)(2) of the ESA — i.e., by
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failing to consult as to the effects of the amendment on an endangered species — then NMFS
necessarily violates Section 304(a)(1)(A) of the MSA.
B. Factual History
Although the Court will provide more detail as to NMFS’s consultation process in the
Analysis Section, infra, it briefly offers some general background here. In 2004, the New
England Fishery Management Council announced its intent to begin work on an amendment
affecting all seven FMPs within its region. See 69 Fed. Reg. 8,367, 8,367 (Feb. 24, 2004). One
of these FMPs governs the Northeast multispecies fishery, id., which is also known as the
groundfish fishery. Conservation Law Found. v. Ross, 374 F. Supp. 3d 77, 87 (D.D.C. 2019).
The groundfish fishery employs a type of gear known as gillnets, which are “wall[s] of netting
that hang[] in the water column,” each between two vertical lines. Fishing Gear: Gillnets,
NOAA Fisheries, https://www.fisheries.noaa.gov/national/bycatch/fishing-gear-gillnets (last
visited Oct. 28, 2019). At the time, several areas in New England waters were designated as
groundfish-closure areas, meaning that “fishing gear capable of catching groundfish,” like
gillnets, was prohibited. Conservation Law Found., 374 F. Supp. 3d at 87. As described in more
detail below, gillnet fishing creates a serious risk of entanglement for North Atlantic right
whales.
While the final Habitat Amendment, promulgated by final rule in April 2018, made many
changes to the New England FMPs, see 83 Fed. Reg. 15,240 (Apr. 9, 2018), most relevant to this
proceeding is that it opened two areas — the Nantucket Lightship Groundfish Closure Area and
the Closed Area 1 Groundfish Closure Area — that had been closed to groundfish fishing gear
for over 20 years. Id.; ESA 5035. (The Court cites to the administrative record, which is filed in
three volumes under ECF No. 48, using the parties’ convention of “ESA ####,” referring to the
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Bates numbers). This means that gillnet fishing is now permitted in those waters. NMFS
approved this measure despite (1) a finding in SFD’s December 2016 Environmental Impact
Statement (EIS) for the Habitat Amendment that the Amendment “may affect” North Atlantic
right whales, see ESA 27763 tbl.61; and (2) public comments suggesting that, by failing to
complete formal or informal consultation with PRD as to the effects of the Habitat Amendment
on these whales, SFD had violated Section 7(a)(2) of the ESA. See ESA 4997, 5029.
CLF filed its Complaint in this case just a month after the Habitat Amendment was
promulgated, alleging that SFD’s failure to consult constituted a violation of the ESA and the
MSA. See Compl., ¶ 1. The agency, for its part, responded that it had “determin[ed] that it was
not required to consult or reinitiate consultation,” but it nonetheless requested a remand in order
to provide “additional explanation of [that] determination.” ECF No. 34 (NMFS Reply re:
Remand) at 2. The Court granted NMFS its requested 30-day remand, see ECF No. 35
(Memorandum Opinion and Order re: Remand), and it permitted CLF to file a renewed
summary-judgment motion, which has now been submitted.
In its Renewed Motion, Plaintiff maintains that judgment in its favor is appropriate on its
ESA and MSA claims. NMFS counters, first, that CLF lacks standing and, as to the merits, that
SFD was not required to consult under the ESA. The Court will begin its analysis with the
former issue. Because it finds that CLF has standing in spades, it will then lay out the legal
standard governing the merits, analyze the central question presented — whether SFD violated
its consultation obligations under Section 7(a)(2) of the ESA — and consider the appropriate
remedy for such a violation.
The Court notes briefly that, because Plaintiff’s summary-judgment motion does not
contest the Habitat Amendment’s changes to the Scallop FMP, Defendant-Intervenor Fisheries
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Survival Fund’s arguments, which relate only to that fishery, are rendered moot. See ECF No.
42 (FSF Cross-Motion for Summary Judgment & Opposition) at 1–2.
II. Standing
The Court begins, as it must, by considering its own jurisdiction to hear this case. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). NMFS argues that the
matter is nonjusticiable because CLF lacks standing. Plaintiff counters that it has both
associational (or representational) and organizational standing on behalf of its members. As the
Court finds the former to be true, it need not address the latter.
Standing is “a doctrine rooted in the traditional understanding of a case or controversy” in
Article III of the Federal Constitution. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). It
requires, at a minimum, that a plaintiff show by a “substantial probability,” Sierra Club v. EPA,
292 F.3d 895, 899 (D.C. Cir. 2002), that she “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. The “injury in fact” must be both
“(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). An
injury is “particularized” when it “affect[s] the plaintiff in a personal and individual way,” and it
is “concrete” when it is “real, and not abstract,” Spokeo, 136 S. Ct. at 1548 (internal quotation
marks omitted), although “intangible injuries can nevertheless be concrete.” Id. at 1549.
When a plaintiff claims a procedural injury, courts in this circuit perform a modified
standing analysis. The first element of standing — injury in fact — remains an irreducible
requirement of Article III, but the “imminence” component of that requirement is “relax[ed].”
Sierra Club v. FERC, 827 F.3d 59, 65 (D.C. Cir. 2016). As to the second element —
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causation — a plaintiff must establish “two causal links: ‘one connecting the omitted [procedural
step] to some substantive government decision that may have been wrongly decided because of
the lack of [that procedural requirement] and one connecting that substantive decision to the
plaintiff’s particularized injury.’” Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 184 (D.C.
Cir. 2017) (alterations in original) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 668
(D.C. Cir. 1996)). The third and final element — redressability — is also relaxed: “[T]he case
law relieves the plaintiff of the need to demonstrate that (1) the agency action would have been
different but for the procedural violation, and (2) that court-ordered compliance with the
procedure would alter the final result.” Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5
(D.C. Cir. 2005) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7 (1992)).
An organization claiming associational standing on behalf of its members must show that
“(1) at least one of its members would have standing to sue in his or her own right [i.e., by
satisfying the standing inquiry described above]; (2) ‘the interests it seeks to protect are germane
to the organization's purpose’; and (3) ‘neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.’” Sierra Club v. FERC, 827 F.3d at 65
(quoting WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013)).
The Court addresses each element of associational standing in turn.
A. CLF Member Standing
As just described, CLF must first demonstrate that at least one of its members would have
standing to sue in her own right. Because an action agency’s failure to consult under Section
7(a)(2) of the ESA constitutes an “archetypal procedural injury,” Ctr. for Biological Diversity,
861 F.3d at 182 (quoting WildEarth Guardians, 738 F.3d at 305), the Court assesses CLF’s
members’ standing using the modified inquiry described above. Plaintiff supplements its
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briefing here with declarations from four of its individual members. See ECF No. 38 (Pl.
Renewed MSJ), Exhs. A (Declaration of Nigella M.K. Hillgarth); B (Declaration of Viola P.
Patek); C (Declaration of Peter Shelley); D (Declaration of Robbin E. Peach). Only three need
be discussed.
1. Injury in Fact
The Court begins with injury in fact. While “the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of
standing,” Lujan, 504 U.S. at 562–63, CLF must nonetheless “show[], through specific facts, not
only that listed species were in fact being threatened by [the agency action], but also that one or
more of [CLF’s] members would thereby be ‘directly’ affected apart from their ‘“special
interest” in th[e] subject.’” Id. at 563 (third alteration in original) (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972); then quoting id. at 739). In other words, CLF must show
both that opening these closure areas to gillnet fishing would threaten North Atlantic right
whales and that at least one CLF member will suffer a concrete and particularized — that is,
individualized — harm if the future of the species was even more threatened than it already is.
See also Friends of the Earth, 528 U.S. at 180. The injury to that CLF member must also be
“actual or imminent,” id., although, as explained above, this imminence requirement is relaxed in
a procedural-injury case such as this one.
Because the subsequent discussion of remedy articulates in great detail the threat posed to
the North Atlantic right whale by NMFS’s opening the closed areas to gillnet fishing, see infra
Section VI.A, the Court will not repeat the same analysis at this point. It will, instead,
concentrate on whether the threat to the whales causes any of the three declarant members a real,
individualized harm.
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a. Nigella Hillgarth
Nigella Hillgarth, the first of the CLF declarants, describes a strong and personalized
recreational, professional, and emotional interest in the North Atlantic right whale, one that
would be injured by a further threat to the species. See Ctr. for Biological Diversity, 861 F.3d at
183 (finding sufficient, for standing purposes, an organization member’s “recreational, scientific,
aesthetic, educational, moral, spiritual and conservation interests” in an endangered species).
Hillgarth served as the CEO and President of the New England Aquarium from 2014 to
2017, during which time her interest in North Atlantic right whales grew into a “deep personal
attachment” to the species, whose “preservation is of great importance to [her] happiness and
wellbeing.” Hillgarth Decl., ¶ 8. She “routinely go[es] on whale watching expeditions in hopes
of seeing” a North Atlantic right whale, id., ¶ 10, and has one such trip planned for April or May
2020, when she hopes to see a seasonal gathering of the whales in Cape Cod Bay. See ECF No.
44, Exh. A (Supplemental Declaration of Nigella M.K. Hillgarth), ¶ 2. Hillgarth has never yet
seen a right whale and is concerned by “[a]nything that reduces the probability” of her seeing
one. See Hillgarth Decl., ¶ 10.
She also states that she “frequently consult[s] news and social media resources for
updates on the status of” the whales and that her professional background “gives [her] a
heightened subjective investment in these activities that other consumers of such information
might not share. Id., ¶ 9. She describes the “dread and despair” she feels at learning that
“conservation efforts [for the species] have plateaued or worsened,” id., in addition to the
“heartbr[eak]” she experienced last year when she learned the story of a North Atlantic right
whale that had “died in agony” from entanglement. Id., ¶ 12. Hillgarth notes that her experience
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in the field makes her “acutely aware . . . that each death is a major setback for the survival of
these severely endangered animals.” Id., ¶ 11.
NMFS argues that Hillgarth’s declaration is insufficient because it “does not describe any
plans to view right whales in the action area.” ECF No. 42 (NMFS Opposition and Cross-
Motion for Summary Judgment) at 23 (emphasis added); see also ECF No. 46 (NMFS Reply) at
3. Even so, it cautions, any such plans averred by Hillgarth are not adequately “concrete . . . ‘to
satisfy the requirement of imminent injury.’” NMFS Cross-Mot. at 23 (quoting Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009)).
As to NMFS’s first point: Hillgarth plans to go to Cape Cod, the closest land mass to
Closed Area I, in order to go out on the water searching for North Atlantic right whales. See
Hillgarth Supp. Decl., ¶ 2; ECF No. 38, Exh. F (Declaration of Michael Moore), ¶¶ 21 fig.6, 25
fig.7. Short of a vacation to Closed Area I itself, which the Court suspects NMFS might find
hard to credit, Hillgarth’s plans get as close to the action area as can reasonably be expected. See
Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 433 (D.C. Cir. 1998) (en banc) (citing
Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332, 1340–41 (9th Cir. 1992)). CLF is not
making the claim here that “anyone who has an interest in studying or seeing the endangered
animals anywhere on the globe has standing,” but rather is presenting the more “plausible’
scenario of “a person who observes . . . a particular species in the very area of the world where
that species is threatened by a federal decision.” Lujan, 504 U.S. at 566 (citing Japan Whaling
Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 231 n.4 (1986)). What’s more, Hillgarth plans to
look for North Atlantic right whales “in the particular area[] that they frequent.” Animal Legal
Def. Fund, 154 F.3d at 433 (quoting Didrickson, 982 F.2d at 1340–41); see also Moore Decl.,
¶ 20 (noting that “as much as half the population” of North Atlantic right whales now uses “Cape
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Cod Bay and the area south of Nantucket and Martha’s Vineyard” as feeding grounds). The
facts of this case are, quite literally, miles within the boundaries provided by the caselaw.
Indeed, one would expect geographic-specificity demands to be more relaxed in a case such as
this one, given that it involves a highly migratory species whose entire population is sharply
affected by even one human-caused death — anywhere — per year. See ESA 25075, 25677.
Neither does NMFS’s other contention — that Hillgarth’s plans to go searching for these
whales are insufficiently definite to give rise to an actual or imminent injury — find support in
precedent. As Hillgarth not only “routinely go[es] on whale watching expeditions in hopes of
seeing” a North Atlantic right whale, see Hillgarth Decl., ¶ 10, but also has plans, formed before
the initiation of this lawsuit, to go to Cape Cod Bay to try to see the whales during their seasonal
feeding time there in April or May 2020, see Hillgarth Suppl. Decl., ¶ 2, her case is a far cry
from the “‘some day’ intentions — without any description of concrete plans, or indeed even any
specification of when the some day will be” that Lujan found insufficient. See 504 U.S. at 564.
Nor does Hillgarth claim merely a “special interest” in the whales. Id. at 563 (quoting Sierra
Club v. Morton, 405 U.S. at 735). She explains that she became deeply invested in the survival
of the species through her responsibilities as president and CEO of the New England Aquarium,
which included “oversight of the institution’s right whale research,” through which she “came to
know their individual stories — including their names, their family trees, whether they calved,
where they migrated, and, tragically, when, where, and how they died.” Hillgarth Decl., ¶ 6.
This interest, born of a unique professional role, cannot be described as anything but personal —
that is, particularized — to Hillgarth. And even though the imminence requirement is relaxed in
this procedural-injury case, Sierra Club v. FERC, 827 F.3d at 65, the remedy discussion below
makes clear how real the threat from increased gillnet fishing is to North Atlantic right whales
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and, thus, to those with a particularized interest in them. See infra Section VI.A. Hillgarth has
sufficiently shown her injury in fact.
b. Viola Patek
Viola Patek has been a member of CLF since 2014 and states that its information “helps
[her] understand the facts about the plight of” North Atlantic right whales, facts that she in turn
shares with her town of Nahant, Massachusetts, using the environmental non-profit organization
Nahant Safer Waters in Massachusetts Inc. (SWIM), of which she has been president since 2012.
See Patek Decl., ¶¶ 2–4. SWIM “advocates for [the] conservation of North Atlantic right
whales,” which Patek facilitates by creating educational and outreach initiatives in the local
community. Id., ¶ 4. She states that SWIM is “absolutely determined to educate the public
about the plight of the whales,” id., ¶ 5, and “has twice spread sighting information on social
media that was used by the public to locate and view North Atlantic right whales in person.” Id.,
¶ 6. Patek further states that “[t]he survival of North Atlantic right whales is of great importance
to [her] work as president of the organization, to which she is “very committed” and which she
“intend[s] to continue . . . into the future.” Id., ¶ 7.
Along with some of her children and grandchildren, she “had the rare privilege of seeing
a North Atlantic right whale” when one appeared in “the waters off the coast of Nahant . . . ,
visible from the shore, for two days.” Id., ¶ 8. She describes the experience as “highly
emotional and personal.” Id. Patek and her family “spent hours observing this whale” and
“could actually hear [its] breathing.” Id. Because of this personal experience, Patek researched
the whale and discovered that it was #2415; the news that it was seen “in very poor condition”
over a year later, therefore, “deeply saddened” her. Id. Patek writes that she “often return[s] to
the spot” where she saw whale #2415 and “regularly scan[s] the ocean especially when it is
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calm,” looking for North Atlantic right whales. Id., ¶ 9. She hopes to see more of these whales
as well as the specific whale they saw that day. Id. She states that “[a]ny action that further
endangers the existence of the North Atlantic right whale is an injury to [her] enjoyment of
whale watching and seeking this individual whale.” Id. Patek further elaborates that threats to
the North Atlantic right whale affect her professionally (by “negatively impacting” SWIM’s
efforts), recreationally (by decreasing her chances of seeing the species), and emotionally
(because the “increased endangerment or extinction of North Atlantic right whales causes [her]
tremendous dread and heartache,” particularly because of her experience with #2415). Id., ¶ 10.
Like Hillgarth, Patek’s declaration demonstrates a strong professional, recreational, and
emotional interest in the survival of North Atlantic right whales that is much more individualized
than that of a member of the general population interested in conservation or in marine
mammals. And there is no suggestion that Patek lacks concrete future plans to look for North
Atlantic right whales: she lives in a town where such a whale has been spotted, often searches the
shoreline for the species, and is the president of an organization that works to inform the local
community of these whale sightings. Indeed, NMFS does not question the future plans of any
declarant but Hillgarth. See NMFS Cross-Mot. at 23–24. Patek’s declaration has demonstrated
her injury.
c. Peter Shelley
Peter Shelley, Senior Counsel and a Vice President for CLF, lives in Marblehead,
Massachusetts, which is “situated on a peninsula in the center of the North Atlantic right whale’s
habitat during the winter and spring months.” Shelley Decl., ¶ 2; id., ¶ 3. Shelley describes his
“strong professional interest,” id., ¶ 5, as well as his “strong personal and recreational interests,”
id., ¶ 6, in protecting North Atlantic right whales. He “founded CLF’s Ocean Program,”
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“participated in CLF’s first federal lawsuit” regarding “impacts on North Atlantic right whales,”
and “give[s] public talks on the plight of the species and work[s] closely with local North
Atlantic right whale researchers, whom [he] count[s] among [his] most important professional
colleagues.” Id., ¶ 5. Shelley has also “gone on numerous chartered whale watching trips from
Boston and Provincetown to observe North Atlantic right whales in Massachusetts Bay,
including one trip . . . with professional colleagues.” Id., ¶ 6. In addition to these chartered trips,
he “spend[s] an extensive amount of time . . . watching for these whales from [his] own boat,
both for leisure and work, when they are migrating through Massachusetts and Maine waters.”
Id. Shelley describes the experience of watching the whales as “a deeply spiritual experience for
[him] that soothes [his] soul and connects [him] directly to the ecological workings of the
planet.” Id. He also tracks sightings of the whales using his professional network as well as
technology, and he “plan[s] to continue [these] efforts.” Id., ¶ 7.
As noted above, NMFS does not contest Shelley’s future plans, and rightly so. There is
no doubt that he has a very real and individualized interest in the North Atlantic right whale that
would be directly harmed by a further threat to the species.
2. Causation
The second element of standing that must be shown for at least one CLF member is
causation — namely, that the injury “is fairly traceable to the challenged conduct of the
defendant.” Spokeo, 136 S. Ct. at 1547. As explained above, in a procedural-injury case, this
means that CLF must establish “two causal links: ‘one connecting the omitted procedural step to
some substantive government decision that may have been wrongly decided because of the lack
of that procedural requirement and one connecting that substantive decision to the plaintiff’s
particularized injury.’” Ctr. for Biological Diversity, 861 F.3d at 184 (alterations omitted)
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(quoting Fla. Audubon Soc’y, 94 F.3d at 668). Here, this means that CLF must show: (1) a
connection between NMFS’s failure to consult under the ESA and its removal of gillnet closures
in the two areas; and (2) a connection between the removal of gillnet closures and a CLF
member’s particularized interest. The latter step can be further divided into two smaller causal
connections: (a) one connecting the removal of the gillnet closures to harm to the whales; and (b)
one connecting harm to the whales to harm to a CLF member’s interest. For each causal step,
CLF must show that it is “substantially probable ‘that the substantive agency action that
disregarded a procedural requirement created a demonstrable risk, or caused a demonstrable
increase in an existing risk, of injury to the particularized interests of the plaintiff.” Sierra Club
v. FERC, 827 F.3d at 65 (quoting Fla. Audubon Soc’y, 94 F.3d at 669).
On the first central question, NMFS’s decision not to consult under Section 7(a)(2) of the
ESA, discussed below, is directly connected to its decision to remove gillnet closures in the two
areas at issue. Because the Service promulgated the Habitat Amendment without going through
the prescribed process under Section 7(a)(2), see infra Section IV, it made the decision to open
the area to gillnet fishing without considering that action’s effect on the species. See Ctr. for
Biological Diversity, 861 F.3d at 184 (finding agency’s failure to consult under ESA
“unquestionably” connected to its decision to use certain kind of pesticide without consideration
of its effect on listed species). This connection far surpasses the substantial probability required.
On the second step, CLF has also easily shown both that the removal of gillnet closures is
substantially likely to cause harm to the North Atlantic right whale and that such harm to the
whale is substantially likely to directly harm its members’ individual interests discussed above.
The first of these two sub-connections is shown at length in the Remedy Section below. See
16
infra Section V.A. The Court, therefore, will proceed to discuss the connection between
(further) harm to the whales and harm to CLF’s members’ individual interests.
The declarations of each of the three aforementioned CLF members show the ways in
which further harm to the whales would injure their personal, professional, and recreational
interests. Hillgarth states that “[a]nything that reduces the probability that [she] will see a North
Atlantic right whale reduces [her] enjoyment” of her recreational whale watching. See Hillgarth
Decl., ¶ 10. She states, too, that learning of “[t]he death of even a single individual of this
species grieves [her], as [she is] acutely aware through [her] professional and academic
background that each death is a major setback for the[ir] survival.” Id., ¶ 11. Patek and Shelley,
who live in coastal Massachusetts towns where North Atlantic right whales are spotted, both
frequently search for the whales. See Patek Decl., ¶¶ 8–10; Shelley Decl., ¶¶ 6–7. Patek asserts
that “[a]ny] action that further endangers the existence of the existence of the North Atlantic
right whale is an injury to [her] enjoyment of whale watching and seeking [the] individual whale
[#2415].” Patek Decl., ¶ 9. Shelley states that whale watching and staying updated on the
whales’ migratory and conservation status “all bring [him] less joy and meaning as the survival
of this species is being further imperiled by continued entanglement in commercial fishing gear,
particularly gillnets.” Shelley Decl., ¶ 11. He also notes the harm to his professional interest,
since the increased risk from gillnets in these areas “stands to undo the conservation
achievements” to which he “ha[s] committed a great portion of [his] life” through his work at
CLF. Id., ¶ 12. The declarations of these members show that they are certain to be harmed in
myriad ways by the further endangerment of the North Atlantic right whale. This more than
satisfies the “substantially probable” standard.
17
NMFS rebuts this strong showing of causation with the argument that the Patek and
Shelley declarations “rely on speculation as to the future actions of third parties and resulting
effects on right whales.” NMFS Cross-Mot. at 24. It argues that CLF needed to, and did not,
prove three additional causal links: first, that fishing efforts will shift into the formerly closed
areas as a result of the Habitat Amendment; second, that there will be increased entanglements
“even though the number of fishing vessels remains the same”; and third, that “entanglements
[will] affect the ability of [CLF] members to observe the species in the wild.” Id. at 25. The
Court addresses each in turn.
NMFS’s first contention — that CLF has not shown that fishing is likely to shift as a
result of the Habitat Amendment — strains credulity. Opening formerly restricted areas to
gillnet fishing is, of course, designed to benefit gillnet fishing by allowing it to occur in these
two new areas. NMFS itself states plainly: “The opening of these areas is expected to have
significant economic benefits for the fishing industry.” NMFS Cross-Mot. at 7. NMFS,
moreover, offers no evidence to support its statement that fishing effort will not shift. The Court
is hard pressed to see why assuming that fishermen will do what the Habitat Amendment was
passed to enable them to do is a “very speculative inference[]” or “assumption[].” Id. at 25
(quoting San Juan Audubon Soc’y v. Wildlife Servs., 257 F. Supp. 2d 133, 137 (D.D.C. 2003)).
The Service’s second point — that CLF has not shown that there will be increased
entanglements “even though the number of fishing vessels remains the same,” id. at 25 — is
similarly unconvincing. Even assuming that NMFS means that the number of gillnets will
remain the same, the question is whether there may be increased entanglements from allowing
gillnets in two specific areas that may house up to half the entire population of North Atlantic
right whales in a given feeding season. As established in the previous paragraph, NMFS has
18
failed to plausibly establish that fishing efforts will not shift into those areas. CLF’s expert,
whose report is discussed in more detail below, see infra Section VI.A, confirms that this shift
could “increase effort” and thus increase the “likel[ihood] an individual whale will encounter and
become entangled in this gear.” Moore Decl., ¶¶ 30–32.
NMFS’s third position — that CLF has not shown that entanglements will affect its
members’ abilities to view North Atlantic right whales in the wild — has already been addressed
in part by the causation analysis above, see supra Section II.A.2, and will be further discussed in
the remedy discussion below. See infra Section V.A. Briefly, however, the causal steps proceed
like this: entanglements cause death, shortened lifespans, and lower reproductivity in North
Atlantic right whales — in short, they result in fewer whales in the water. Id. Fewer whales in
the water means a lower chance of CLF’s members seeing the whales. See Hillgarth Decl.,
¶¶ 10–11; Patek Decl., ¶¶ 8–10; Shelley Decl., ¶¶ 6–7.
CLF has thus shown the substantial probability required to prove this second element of
standing, and it has done so for all three declarant members.
3. Redressability
The last of the three elements of individual standing is redressability — that is, that the
injury in fact of its members is “likely to be redressed by a favorable judicial decision.” Spokeo,
136 S. Ct. at 1547. As noted above, this third element of standing is relaxed when the injury
alleged is procedural: “[T]he case law relieves the plaintiff of the need to demonstrate that (1) the
agency action would have been different but for the procedural violation, and (2) that court-
ordered compliance with the procedure would alter the final result.” Nat’l Parks Conservation
Ass’n, 414 F.3d at 5 (citing Lujan, 504 U.S. at 572 n.7). CLF need only show “that a revisitation
of the [agency action] that includes an effects determination and any required consultation would
19
redress [its] members’ injury because the [agency] could reach a different conclusion.” Ctr. for
Biological Diversity, 861 F.3d at 185.
Here, there is certainly a possibility that NMFS will change its mind as to the two
closures in question once it follows the prescribed procedures under the ESA and its regulations.
Indeed, Congress — through the ESA — created this system of “institutionalized caution”
precisely so that agencies would reconsider actions that threaten endangered species. Hill, 437
U.S. at 194. NMFS has made no statements to the contrary, and, even if it had, those would not
be dispositive. Ctr. for Biological Diversity, 861 F.3d at 185 (finding plaintiffs had met relaxed
redressability requirement even when agency “assert[ed] that a ‘serious possibility’ exist[ed]”
that its final action would not change after ESA effects determination and consultation).
Because this possibility exists, CLF has shown that the injury to its members’ interests is
redressable by a favorable outcome in this litigation.
To recap: because the Court finds that all three CLF member declarants have shown
injury in fact, causation, and redressability, Plaintiff has now met the first element of
associational standing — viz., at least one of its members would have standing to sue
individually. Two other elements remain.
B. Interests Germane to CLF’s Purpose
As noted above, the second requirement of associational standing is that “the interests
[the organization] seeks to protect are germane to [its] purpose.” Sierra Club v. FERC, 827 F.3d
at 65 (quoting WildEarth Guardians, 738 F.3d at 305). The D.C. Circuit recently stated that it
had “no difficulty finding that . . . an organization dedicated to the protection and enjoyment of
the environment” had an interest in an agency’s fulfilling its consultation obligations under the
ESA. Ctr. for Biological Diversity, 861 F.3d at 182 (internal quotation marks omitted). CLF,
20
whose purpose is “to protect New England’s environment for the benefit of all people,” Pl.
Renewed MSJ, Exh. E (Declaration of Sean Mahoney), ¶ 3, has an “obvious interest” in
challenging NMFS’s compliance with ESA consultation procedures as to the effect of the
Habitat Amendment on an endangered species that frequents New England waters. See Ctr. for
Biological Diversity, 861 F.3d at 182 (quoting Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier
Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013)). But CLF has a specific purpose even more
germane than that: North Atlantic right whales have been a “focus” of CLF’s work “[f]or over 40
years” in myriad ways, including suits, amicus briefs, advisory consultation, and various direct-
conservation efforts. See Mahoney Decl., ¶¶ 5–11. Given that an organization with
conservationism writ large as its purpose has been found to fulfill this requirement, see Ctr. for
Biological Diversity, 861 F.3d at 182, there can be no question that this is so for an organization
that focuses on whales specifically. CLF easily meets this requirement.
C. No Member Participation Required
The third and final hurdle CLF must overcome in order to prove its associational standing
is that “neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Sierra Club v. FERC, 827 F.3d at 65 (quoting WildEarth Guardians,
738 F.3d at 305). Here, the claim asserted is NMFS’s violation of its consultation obligation
under ESA, and the relief requested is an injunction requiring the Service to restore gillnet
closures to the two areas. Neither requires CLF member participation, accord Ctr. for Biological
Diversity, 861 F.3d at 182, and NMFS makes no argument to the contrary.
As CLF thus meets all three requirements of associational standing, the Court may move
on to the merits.
21
III. Legal Standard
As noted above, Plaintiff’s ESA (and thus MSA) claims preclude a separate cause of
action under the APA. But, ironically, the legal standard used to evaluate cases brought under
the ESA is the judicial-review provision of the APA. See Nat’l Ass’n of Home Builders v.
Norton, 415 F.3d 8, 13 (D.C. Cir. 2005). While the subject of review is whether NMFS has
violated the ESA, the standard of review is thus found in APA precedent.
Because of the limited role federal courts play in reviewing such administrative
decisions, the typical Federal Rule 56 summary-judgment standard does not apply to the parties’
dueling Motions. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89–90 (D.D.C. 2006).
Instead, “the function of the district court is to determine whether or not . . . the evidence in the
administrative record permitted the agency to make the decision it did.” Id. at 90 (quoting
Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985)). Summary judgment thus
serves as the mechanism for deciding, as a matter of law, whether an agency action is supported
by the administrative record and is otherwise consistent with the APA standard of review. See
Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing Richards v. INS, 554 F.2d 1173,
1177 (D.C. Cir. 1977)).
The Administrative Procedure Act “sets forth the full extent of judicial authority to
review executive agency action for procedural correctness.” FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if, for
example, the agency “entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
22
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Under this “narrow” standard of review, an agency is required to “examine the relevant
data and articulate a satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Id. (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)). Courts “have held it an abuse of discretion for [an agency] to
act if there is no evidence to support the decision or if the decision was based on an improper
understanding of the law.” Kazarian v. U.S. Citizenship and Immigration Servs., 596 F.3d 1115,
1118 (9th Cir. 2010). Put another way, the court’s role is only to “consider whether the decision
was based on a consideration of the relevant factors and whether there has been a clear error of
judgment.” Am. Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 4 (D.D.C. 2000) (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
It is not enough, then, that the court would have come to a different conclusion from the
agency. See Oceana, 24 F. Supp. 3d at 58 (citing Steel Mfrs. Ass’n v. EPA, 27 F.3d 642, 646
(D.C. Cir. 1994). The reviewing court “does not substitute its own judgment for that of the
agency.” Id. A decision that is not fully explained, moreover, may be upheld “if the agency’s
path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974). It is only these “certain minimal standards of rationality” to which a
reviewing court holds an agency. See Nat’l Envtl. Dev. Ass’ns Clean Air Project v. EPA, 686
F.3d 803, 810 (D.C. Cir. 2012) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36–37 (D.C. Cir. 1976)
(en banc)).
NMFS also claims that SFD’s choices are entitled to the even more deferential standard
used to review agency decisions involving technical expertise. See NMFS Cross-Mot. at 29.
23
But it is not the action agency that is the expert as to its duties under the ESA and its regulations.
Nat’l Wildlife Fed’n v. Brownlee, 402 F. Supp. 2d 1, 10–11 (D.D.C. 2005) (citing Office of Pers.
Mgmt. v. FLRA, 864 F.2d 165, 171 (D.C. Cir. 1988)). The Court, therefore, will not afford this
further level of deference.
IV. Analysis
Now that the ship has been fully rigged, the Court steers to the crux of the matter:
whether the Sustainable Fisheries Division of NMFS violated Section 7(a)(2) of the ESA by
failing to engage in consultation with the Protected Resources Division of NMFS as to the
effects of the Habitat Amendment on North Atlantic right whales. As previously explained, a
failure to consult under the ESA also constitutes a violation of Section 304(a)(1)(A) of the MSA.
To recap, SFD began work on the Habitat Amendment, which covers all seven FMPs
overseen by the New England Fishery Management Council, in 2004. See 69 Fed. Reg. 8,367(Feb. 24, 2004). Once the measures to be implemented by the Amendment had been determined,
and pursuant to its duties under a separate environmental statute, SFD issued a final
Environmental Impact Statement (EIS) for the Habitat Amendment in December 2016. See ESA
27319–29266. That EIS considered not only the environmental impacts of the individual
proposed changes to the FMPs but also the cumulative effects of the entire Amendment. Id.Most relevant to this case, the EIS found that the Habitat Amendment may affect the North
Atlantic right whale. See ESA 27763 tbl.61 (listing whether various species were “[p]otentially
affected” by the Habitat Amendment and answering this question in affirmative for North
Atlantic right whale).
Despite this clear finding, SFD did not then engage in either informal or formal
consultation with PRD as to the effects of the Habitat Amendment on the whale. See NMFS
24
Cross-Mot. at 29–30. Instead, SFD undertook its own “internal review process” to “determin[e]
that consultation was not required prior to approving the Habitat Amendment.” Id. at 32. While
SFD “did not contemporaneously document the details of” this process at the time NMFS avers
the review was undertaken — i.e., before promulgation of the Amendment — “it did so during
the limited remand granted by the Court.” Id. This internal-review process consisted of filling
out several “checklist[s],” each applying to 1–3 FMPs within the New England region. Id.Those checklists were “created for th[e] purpose” of analyzing whether consultation was
required as to the effects of the changes made to that FMP on the North Atlantic right whale. Id.;
see ESA 30989–94 (Atlantic Sea Scallop FMP); ESA 30999–31004 (Atlantic Herring FMP);
ESA 31015–16 (Red Crab FMP); ESA 31017 (Northeast Multispecies, Monkfish, and Skate
FMPs combined). In each case, the completed checklist found that no consultation was required.
As to the seventh FMP — the Atlantic Salmon FMP — SFD did not complete a checklist
because the Amendment’s only changes to the Salmon FMP were to increase protections for the
salmon, and thus “consultation on the Salmon FMP is not required at this time.” ESA 30988.
CLF’s core contention is simple: notwithstanding the various steps SFD took on its own,
it never completed the required consultation with PRD as to the effects of the Habitat
Amendment on the whale. See Pl. Renewed MSJ at 20–23. In CLF’s view, once SFD had
determined in its December 2016 EIS that the Amendment “may affect” the whale, it was no
longer empowered to make any sort of interim determination that consultation was not required.
In other words, the “may affect” trigger necessitated either informal or formal consultation. Id.;
see also 50 C.F.R. § 402.14(a)–(b). No amount of “internal review” — and especially not a
review process that segmented the Amendment into its effects on the separate FMPs — fulfills
this consultation duty. See Pl. Renewed MSJ at 20–23.
25
CLF’s position is unequivocally supported by the ESA, its regulations, and the caselaw.
Once an action agency makes the determination that its action “may affect” a listed species, it is
without discretion to avoid consultation with the expert agency as to the effects of the action on
the listed species. See 50 C.F.R. § 402.14(a)–(b); Ctr. for Biological Diversity v. U.S. Dep’t of
Interior, 563 F.3d 466, 474–75 (D.C. Cir. 2009) (“If an agency concludes that its action ‘may
affect’ a listed species or critical habitat, then the agency must pursue either formal or informal
consultation with the [expert agency].”); Nat’l Parks Conservation Ass’n v. Jewell, 62 F. Supp.
3d 7, 12 (D.D.C. 2014) (“[A]n agency avoids the consultation requirement for a proposed
discretionary action only if it determines that its action will have ‘no effect’ on threatened or
endangered species or critical habitat.”) (emphasis added) (quoting Ctr. for Biological Diversity,
563 F.3d at 475). At a minimum, SFD had to engage in informal consultation with PRD as to the
combined effects of the entire Habitat Amendment and obtain a “written concurrence” from it
confirming “that the action is not likely to adversely affect listed species.” 50 C.F.R.
§ 402.13(a). If PRD could not so find, SFD was required to participate in formal consultation
with it. Id. § 402.14(a)–(b). Ultimately, in such a situation, only a biological opinion by PRD
finding that the combined effects of the entire Habitat Amendment are “not likely to jeopardize
the continued existence of any endangered species,” 16 U.S.C. § 1536(a)(2), will relieve SFD of
its ESA duties and permit the action to carry forward. 50 C.F.R. § 402.14(h)(3); see also 16
U.S.C. § 1536(a)(2). NMFS concedes that it has not traveled down either of these avenues. It
therefore stands in clear violation of the ESA and, as a result, of the MSA. See 16 U.S.C.
§ 1854(a)(1)(A).
In an effort to escape the wide net cast by Section 7(a)(2), NMFS argues that it had
discretion to determine, “on a fishery-by-fishery basis,” whether consultation was needed. See
26
NMFS Cross-Mot. at 29. Even if such segmented analysis were permitted, this argument suffers
from the same problem just discussed: SFD had no discretion to make any sort of interim
determinations after its finding that the Habitat Amendment “may affect” the North Atlantic
right whale. Once SFD made this “may affect” determination, it had to proceed directly to
consultation — it could not pass Go, it could not collect $200, and it could not make any more
independent determinations as to its ESA duties, “fishery-by-fishery” or otherwise. See Ctr. for
Biological Diversity, 563 F.3d at 474–75; Nat’l Parks Conservation Ass’n, 62 F. Supp. 3d at 12.
In any event, the “fishery-by-fishery” approach is not permitted by ESA regulations or
the caselaw, even when consultation does occur. ESA regulations permit grouping individual
actions for purposes of consultation, but expressly caution that any such groupings “do[] not
relieve the Federal agency of the requirements for considering the effects of the action as a
whole.” 50 C.F.R. § 402.14(c). The reason for this is intuitive: “[S]uch impermissible
segmentation would allow agencies to engage in a series of limited consultations without ever
undertaking a comprehensive assessment of the impacts of their overall activity on protected
species.” Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F. Supp. 2d 230, 255 (D.D.C. 2003).
For this reason, the memorandum offered by NMFS and written from PRD to SFD during
remand does not cure its Section 7(a)(2) defects. The memo states that, by reviewing the fishery-
by-fishery checklists described above, PRD had “completed an intra-agency consultation under
section 7 of the Endangered Species Act” and “concur[red] with [SFD’s] determination that the
proposed action [did] not trigger the need to reinitiate consultation” as to various individual
FMPs. See ESA 30986. Putting aside the expert agency’s apparent lack of independent
investigation of the individual FMPs’ effects on the whales, this “consultation” is insufficient
merely by nature of its “impermissible segmentation.” Am. Rivers, 271 F. Supp. 2d at 255.
27
Indeed, this case is a perfect example of why the rule against such a piecemeal analysis
exists. Segmenting the Amendment for purposes of both its own ultra vires interim ESA
determination and PRD’s concurrence with that determination led not only to a failure to
consider the combined and cumulative effects of the various measures of the Habitat
Amendment but also to SFD’s reliance on individual, outdated biological opinions for individual
FMPs. For example, one of the biological opinions on which NMFS relies was completed in
2002 — before the Habitat Amendment was even initiated. See NMFS Cross-Mot. at 15–16, 19.
Another, completed in 2013, appears to assume the continued existence of the two groundfish
closure areas at issue in this case. Id. at 18–19; see ESA 5507, 5523–28.
More broadly, however, having treated the Habitat Amendment as one action from its
initiation, see 69 Fed. Reg. 8,367, through its EIS, see ESA 27319–29266, to its promulgation,
see 83 Fed. Reg. 15,240, NMFS cannot now maintain that segmenting the Amendment for ESA
purposes will allow it to obtain a “comprehensive assessment of the impacts of their overall
activity on protected species.” Am. Rivers, 271 F. Supp. 2d at 255; see 50 C.F.R. § 402.14(c)
(stressing the obligation to “consider[] the effects of the action as a whole”). Only an assessment
of the Amendment as a whole would be able to consider, for example, the overall shifts and
resulting density of fishing effort as a result of the multiple changes proposed by the various
parts of the Amendment. (As should be clear by now, PRD’s 2017 reinitiation of formal
consultation on the 2002 and 2013 biological opinions, undertaken for reasons unrelated to the
Habitat Amendment, see ESA 6048, cannot produce any end product that will satisfy SFD’s
consultation duties as to the entire Habitat Amendment.)
In sum, NMFS’s duty was clear, and the Court cannot excuse this breach, even under the
deferential APA standard of review. Having determined that the Amendment may affect North
28
Atlantic right whales, SFD was required to undergo consultation with PRD as to the effects of
the entire Habitat Amendment on the species. By failing to do so, it violated Section 7(a)(2) of
the ESA and, consequently, Section 304(a)(1)(A) of the MSA. These manifest statutory
violations are, of course, “not in accordance with law.” 5 U.S.C. § 706(2)(A). Judgment in
Plaintiff’s favor is thus warranted, and the contours of an appropriate remedy are discussed next.
V. Remedy
CLF seeks “a narrowly tailored injunction” that would “restore the prior prohibition on
gillnet fishing” in Closed Area I and the Nantucket Lightship Area. See Pl. Renewed MSJ at 37–
38. In other words, Plaintiff seeks to return to the status quo that existed for 20 years prior to the
promulgation of the Habitat Amendment. See ECF No. 45 (Plaintiff Reply) at 43–44.
The standard for a permanent injunction is a familiar one. CLF must convince the Court
of four things:
(1) that it has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by
a permanent injunction.
Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 156–57 (2010) (quoting eBay Inc v.
MercExchange, L.L.C., 547 U.S. 338, 391 (2006)). While the first element is recited in the past
tense, the Supreme Court has recognized that it may include future harm. See Monsanto, 561
U.S. at 162 (finding respondents did not adequately show “that they will suffer irreparable
injury” if the agency were “allowed to proceed” (emphasis added)). And when an injunction is
being considered as a remedy for a violation of Section 7 of the ESA, “the third and
fourth factors . . . are generally considered to tip in favor of the species.” NMFS Cross-Mot. at
40 (citing Hill, 437 U.S. at 194). In passing the ESA, “Congress has spoken in the plainest of
29
words, making it abundantly clear that the balance has been struck in favor of affording
endangered species the highest of priorities.” Hill, 437 U.S. at 194 (enjoining construction of
dam that was nearly completed).
Upon consideration of these four factors, discussed in turn below, the Court is convinced
that an injunction should issue. See Monsanto, 561 U.S. at 158 (“It is not enough for a court
considering a request for injunctive relief to ask whether there is a good reason why an
injunction should not issue; rather, a court must determine that an injunction should issue.”).
NMFS raises arguments as to only the first factor — irreparable injury — and does not appear to
contest the last three. See NMFS Cross-Mot. at 40–42.
A. Irreparable Injury
To meet this first prong, CLF must show that it “will suffer irreparable injury if [the
agency] is allowed to proceed.” Monsanto, 561 U.S. at 162. The injury that will result to CLF
through its members if North Atlantic right whales are harmed has already been discussed at
length. See supra Sections II.A.1–2. The Court here thus focuses on why opening Closed Area I
and the Nantucket Lightship Area to gillnet fishing will cause irreparable harm to the whale.
The parties each submit expert declarations on this issue. As previously discussed, CLF
offers one from Dr. Michael Moore, senior scientist at the Woods Hole Oceanographic Institute
and director of its Marine Mammal Center, who holds a master’s degree and a Vet MB from the
University of Cambridge as well as a PhD in Biological Oceanography from the Massachusetts
Institute of Technology’s joint program with the Woods Hole Institute, where he has been
employed since 1986. See Moore Decl., ¶¶ 2, 4. Dozens of Moore’s 137 peer-reviewed
publications have studied the entanglement of North Atlantic right whales, id. at 24–36, and he
has served as the Chair of two of NMFS’s scientific bodies: the Unusual Marine Mammal
30
Mortality Events review panel and the Atlantic Scientific Review Group. Id., ¶ 5. NMFS
counters with the declaration of Michael Asaro, who has been the Marine Mammal and Sea
Turtle Branch Chief in the Greater Atlantic Region at NMFS since June 2017, before which he
worked as a Policy Analyst at NMFS since September 2010. See NMFS Cross-Mot., Exh. B at
7–8. Asaro holds a Masters in Environmental Management concentrating in Policy, Economics,
and Law from the Yale University School of Forestry and Environmental Studies as well as a
PhD in Law and Public Policy from Boston University. Id. at 7. Two of his three peer-reviewed
publications have studied the entanglement of North Atlantic right whales. Id. at 8–9. In his
current position at NMFS, Asaro “manage[s] the implementation of conservation programs to
protect North Atlantic right whales under . . . the Endangered Species Act.” Id., ¶ 1.
Moore presents powerful evidence, supported by extensive citation to peer-reviewed
research, that opening these two areas to gillnet fishing will irreparably harm North Atlantic right
whales. Gear entanglement, which has been increasing since 2003, and the incidence of which is
almost certainly underestimated, is “the most important diagnosed cause of death in this
species.” Moore Decl., ¶ 12; see also id., ¶ 13 (listing reasons for underestimation). When the
global population of a species is as low as 400, id., ¶ 9, “every mortality is of huge significance
to the potential for the species to avoid extinction.” Id., ¶ 15 (citing a 2018 study finding that
without the increase in entanglement over the last 3 decades, North Atlantic right whales “could
have been much more resilient to a disaster year like 2017”).
Death is not the only harmful consequence of entanglement and fishing-gear drag for the
whales; the energy needed to recover from these incidents has drastically delayed how frequently
reproductively viable females now give birth. Id., ¶ 17. Given that there are fewer than 100
breeding females left alive on the planet, id., ¶ 11, and given that studies (from before
31
entanglements increased dramatically starting in 2010) estimate that as many as 83% of the
whales have been entangled at least once, id., ¶ 16, this “sub-lethal” effect of gear drag and
entanglement may be equally harmful to the whale population.
Gillnet fishing, the type that the Habitat Amendment permits in Closed Area I and the
Nantucket Lightship Area, presents a “disproportionate risk” of entanglement to these whales as
compared to other types of fishing gear. Id., ¶ 18. This is because gillnets are “a wall of netting
that hangs in the water column.” Fishing Gear: Gillnets, NOAA Fisheries,
https://www.fisheries.noaa.gov/national/bycatch/fishing-gear-gillnets (last visited Oct. 5, 2019).
This “much larger target area” — up to 300 feet wide — makes gillnets harder for a whale to
avoid. See Moore Decl., ¶ 18.
In the last several years, North Atlantic right whales “ha[ve] increasingly used the Cape
Cod Bay (as much as half the population) and the area south of Nantucket and Martha’s
Vineyard.” Id., ¶ 20. This is true “especially during the winter and spring,” but some of the
species now “stay in these waters . . . year round.” Id. These areas “overlap the former gear
restricted areas eliminated when the Habitat Amendment was implemented.” Id., ¶ 21; compare
id., ¶ 20 fig.5 (map showing increase in North Atlantic whale sightings), with id., ¶ 21 fig.6 (map
showing the two formerly closed areas). Unsurprisingly, opening these two protected areas to
gillnet fishing is likely to shift gillnet fishing there, increase the distribution of gillnets through
these waters that host vast concentrations of North Atlantic right whales, and thus increase the
risk of those whales’ becoming entangled in the gillnet gear. Id., ¶¶ 31–32. Given the lethal and
sub-lethal effects of entanglement, removing gillnet closures is likely to cause irreparable injury
to these whales and thus to CLF and its members. See also supra Sections II.A.1–2.
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NMFS attempts to rebut this conclusion with two arguments. First, it claims that Asaro
has shown that “gillnets do not pose a greater entanglement risk within the former closed areas
than other vertical lines.” NMFS Cross-Mot. at 41 (citing Asaro Decl., ¶ 8). Second, NMFS
points to Asaro’s conclusion that gear-closure areas are not as effective as two alternate methods
of whale protection because whale “hotspots” are not static. Id. (citing Asaro Decl., ¶¶ 10–12).
The fundamental problem with both of these arguments is that, even if true, they do not
refute the conclusion that opening these two areas to gillnet fishing will irreparably injure North
Atlantic right whales. The question is not whether there are more harmful actions the agency
could take or more effective ways of protecting the whales than keeping the two areas closed. It
matters only that gillnet fishing seriously harms the whales and that opening these areas to gillnet
fishing would cause such injury. Both of these propositions have just been shown above.
For the sake of completeness, however, the Court will note other reasons why Asaro’s
assertions do not carry the day. His first claim, made without citation, is that “gillnet gear is a
minor contributor to the overall right whale entanglement risk . . . because lobster fishing
accounts for over 97% of the vertical lines on the east coast.” Asaro Decl., ¶ 7. But, of course,
this only helps to strengthen CLF’s position. Gillnet gear, which NMFS points out can be at
most 3% of vertical line fishing on the east coast, accounted for 10% of fishery-related right-
whale deaths in the last twenty years. See Moore Decl., ¶ 18. Moore explains in a supplemental
declaration — and with reference to peer-reviewed research — that it is the net panels strung
between the vertical lines in gillnet fisheries, more so than the vertical lines themselves, that pose
the outsized risk to these whales, whose feeding behavior takes them frequently between the
ocean’s floor and its surface. See Pl. Reply, Exh. B (Supplemental Decl. of Michael Moore), ¶ 8.
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So NMFS’s reliance on the relatively low presence of gillnets only emphasizes the
“disproportionate risk” they pose to the whales. See Moore Decl., ¶ 18.
Asaro’s second position is that area closures are not the most effective method of
preventing entanglement because whale “hotspots” are not static. While the areas where North
Atlantic right whales have concentrated has indeed shifted over time, their current concentration
for the last five years has been where the two closed areas are. Id., ¶¶ 20–21. The Court is
disinclined to speculate that the species might immediately and completely abandon these areas,
such that opening gillnet closures would have a much smaller impact on their survival. In any
case, Moore also points out several concerning “scientific shortcomings” with the model Asaro
used as the basis for his conclusions. See Moore Supp. Decl., ¶ 6. Moore states that, when
presented with the recent modeling at their latest meeting, several members of NMFS’s Atlantic
Large Whale Take Reduction team “expressed significant concerns” with the modeling tool,
which “was not designed to evaluate gillnet risk to [North Atlantic right whales].” Id., ¶ 6.
Moore further explains that, among other issues, the model “was heavily biased by survey data
prior to 2010 (1998-2016) even though the distribution of right whales shifted significantly after
that time frame.” Id. Suffice it to say, Asaro’s statement that there are other, more effective
methods of preventing entanglement does not convince the Court that opening the two closed
areas to gillnet fishing will not cause irreparable injury to North Atlantic right whales.
B. Inadequacy of Legal Remedies
The second element needed for a permanent injunction, uncontested by NMFS, is that
“remedies available at law, such as monetary damages, are inadequate to compensate for that
injury.” Monsanto, 561 U.S. at 156. It hardly merits recitation that the harm inflicted upon the
whales by entanglement, and the resulting harms to the professional, aesthetic, and recreational
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interests of CLF’s members, are noncompensable by legal remedies. Both lethal and sublethal
effects of entanglement bring the species ever closer to extinction, from which there is, of course,
no return. Even short of extinction, each death causes the declarant CLF members individualized
personal and professional anguish that money damages would not redress. See Hillgarth Decl.,
¶ 10; Patek Decl., ¶ 9; Shelley Decl., ¶¶ 5–6. Significantly, NMFS makes no argument that the
irreparable injury caused by opening these two closed areas to gillnet fishing could be remedied
by any relief available at law. See NMFS Cross-Mot. at 40–42. The Court finds this element
easily met.
C. Balance of Hardships / Public Interest
The final two elements CLF must show in order to convince the Court that an injunction
should issue are “(3) that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.” Monsanto, 561 U.S. at 157. As noted above, the Supreme
Court has recognized that, in an ESA case, these two inquiries are influenced heavily by
Congress’s plain meaning in enacting the ESA. It being “the exclusive province of the
Congress” to “establish the[] relative priority for the Nation” of legislative policies and projects,
it is not “our function” as courts to question the priorities set by Congress when it passed the
ESA. Hill, 437 U.S. at 194. The plain text of the ESA “mak[es] it abundantly clear that the
balance has been struck in favor of affording endangered species the highest of priorities.” Id.As NMFS concedes, see NMFS Cross-Mot. at 40, Congress has thus instructed both the
executive and the judicial branches as to whose hardships are to be prioritized and as to what will
serve the public interest. Between the hardship to the North Atlantic right whale of its fast-
approaching extinction and the hardship to NMFS of completing its legislatively mandated
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consultation to ensure that Congress’s priorities as to endangered species are carried out, there
can be no confusion. And the public interest in preventing the extinction of the whale, which has
been listed as endangered since the passage of the ESA, is beyond dispute. It is not the place of
this Court to question these legislative priorities nor to allow NMFS to escape their strictures.
Upon consideration of the four elements above, the Court finds not only that each
element is met but also “that an injunction should issue.” Monsanto, 561 U.S. at 158.
VI. Conclusion
For the foregoing reasons, the Court will grant CLF’s Motion for Summary Judgment,
grant CLF’s request for injunctive relief, and deny NMFS’s and FSF’s corresponding Cross-
Motions for Summary Judgment. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 28, 2019
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