Center for Biological Diversity v. Ross

Conservation Law Foundation filed a lawsuit challenging the National Marine Fisheries Service’s ongoing authorization and management of the American lobster fishery for failing to prevent jeopardy and unlawful takes of North Atlantic right whales in violation of the Endangered Species Act, the Marine Mammal Protection Act, and the Administrative Procedure Act. The complaint alleged, among other claims, that a 2014 biological opinion concerning the effects of continued operations of the lobster fishery on endangered and threatened species, including the right whale, was arbitrary and capricious. One of the shortcomings alleged in the complaint was the biological opinion’s failure to add the fishery’s direct and indirect effects (entanglement in fishing gear was alleged to be the “single greatest threat” to right whale survival) to the environmental baseline and the cumulative effects on the species. Climate change was among the factors discussed in the environmental baseline and cumulative effects analysis as potentially having a negative influence on right whale recovery.

The federal district court for the District of Columbia remanded a 2021 biological opinion for lobster and crab fishing off the Atlantic coast to the National Marine Fisheries Service (NMFS) and held the question of vacatur of the biological opinion in abeyance. Further briefing is to be submitted after NMFS issues a new final Atlantic Large Whale Take Reduction Plan Amendment Rule, which NMFS must do no later than December 9, 2024. The court held earlier this year that NMFS violated both the Endangered Species Act and the Marine Mammal Protection Act when it issued the rule and biological opinion, which authorized zero lethal takes of the endangered North Atlantic right whales despite the projection that the American lobster fishery would potentially kill and seriously injure the whales at over three times the sustainable rate. The court concluded that holding the decision on vacatur in abeyance was “the wisest course because facts on the ground are shifting rapidly, as new data emerge on right-whale migratory patterns, mortality factors, technological change, and more.” Those changes include “climate shifts” that push the whales’ habitat northward.

The federal district court for the District of Columbia ruled that a 2014 biological opinion for the American lobster fishery was invalid because the National Marine Fisheries Service did not include an incidental take statement despite finding that the fishery had the potential to harm the endangered North American right whale at more than three times the sustainable rate. The court described the “largest modern threats” to the right whale as ship strikes and fishing-gear entanglement, but the complaint alleged that the biological opinion recognized other threats, including ingestion of plastic debris and global climate change. The court did not address the plaintiffs’ other arguments regarding the inadequacies of the biological opinion and said it would accept briefing from the parties on the scope of an injunctive remedy.

The federal district court for the District of Columbia denied the National Marine Fisheries Service and other federal defendants’ (NMFS’s) motion to stay a lawsuit challenging the management of the American lobster fishery. Plaintiffs asserted that the federal defendants failed to adequately address the fishery’s impacts on the endangered North American right whale, including by failing to consider cumulative effects of climate change. NMFS argued that the case should be stayed because its pending promulgation of two conservation measures would moot the claims, but the court found that NMFS had not shown a compelling need for a stay. The court decided that the case should proceed “because harm to a critically endangered species hangs in the balance.”