D.C. Circuit Rejects National Marine Fisheries Service's "Egregiously Wrong" Decision On Right Whales

• Published date: 27 June 2023
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation
• Law Firm: Duane Morris LLP
• Author: Ms Michelle C. Pardo

On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the "benefit of the doubt" to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA). Maine Lobstermen's Association v. State of Maine Dep't of Marine Resources (D.C. Cir. June, 16, 2023) (slip opinion).

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

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

NMFS is required to use "the best scientific and commercial data available" in assessing the impact that an activity may be having on a protected species. Relying on the legislative history of the 1979 ESA amendments, NMFS determined that where data is limited and assumptions are required, it should give the "benefit of the doubt" to the endangered or threatened species. Id. at 7-8.

In analyzing the data on deadly entanglements, it was apparent that most deadly and...