First Circuit Stays Ruling and Closes Fishing Area Due to Protected Species Concerns

On November 16, 2021, the U.S. Court of Appeals for the First Circuit granted the National Marine Fisheries Service’s (“NMFS’s”) motion to keep effective its rule seasonally closing a lobster fishing area pending appeal.  In granting the motion, the court indicated a strong likelihood that NMFS would prevail on the merits of its appeal given the purposes of the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA”), traditional agency deference, and the rationality of NMFS’s modeling approach.

The North Atlantic Right Whale Is Endangered and Depleted.

North Atlantic right whales are listed as endangered under the ESA and considered depleted under the MMPA.  The most recent population analysis from 2019 estimates a total of 368 North Atlantic right whales.  According to NMFS, one of the primary causes of mortality and serious injury of the whale is entanglement in fishing gear.  NMFS also acknowledges that climate change and related shifts in prey abundance are a cause.  

NMFS’s Rule Seasonally Prohibits Lobstering in Specified Areas.

“[T]o reduce the risk that a right whale would become entangled in ropes connecting lobster traps to buoys,” NMFS adopted a rule restricting lobster fishing activities in specified areas.  NMFS’s rule prohibits, from October to January each year, common methods of lobstering in over 950 square miles of the Atlantic Ocean roughly 30 nautical miles off the Maine Coast (“Restricted Area”).

The First Circuit Concluded that NMFS Has a Strong Likelihood of Prevailing on the Merits.

In deciding to stay the lower court’s order pending appeal, the First Circuit relied on several factors.  First, the court gave significant weight to the purposes of the ESA and MMPA, which include species recovery and reducing the incidental mortality and serious injury of marine mammals to insignificant levels.  Second, the court rejected plaintiffs’ argument that NMFS lacked evidence that right whales aggregate in the Restricted Area.  According to the court, NMFS’s model “projected both that some right whales would be present in the winter months . . . and that the proliferation of trap lines would pose a substantial risk to those whales.”  The court also observed that NMFS gliders (underwater vehicles that use an acoustic detection algorithm for data collection) detected the presence of right whales in 2018 and 2019 within the Restricted Area during the seasonal closure months.  Third, the court recognized that the model relied on the best available commercial and scientific information and was peer-reviewed.  Although the court acknowledged the serious financial impacts the rule would have on lobstermen who traditionally fish in the Restricted Area, the court concluded that a stay was appropriate because, among other things, NMFS’s case on the merits is so strong.

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A copy of the opinion is available here.  If you have any questions about this decision, please contact Jared Wigginton at jared@goodstewardlegal.com.  

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