District 4 Lodge of the International Association v. Raimondo ( 2022 )

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
Lynch, Kayatta, and Gelpí
Circuit Judges.
Rachel E. Heron, Attorney, Environment & National Resources
Division, Department of Justice, with whom Todd Kim, Assistant
Attorney General, Environment & National Resources Division,
Department of Justice, Andrew C. Mergen, Alison C. Finnegan, Brett
Grosko, Taylor A. Mayhall, and Erika B. Kranz, Attorneys,
Environment & National Resources Division, Department of Justice,
Darcie N. McElwee, United States Attorney, U.S. Attorney's Office,
District of Maine, John G. Osborn, Chief, Civil Division, U.S.
Attorney's Office, District of Maine, and John Almeida, Attorney-
Advisor, National Oceanic & Atmospheric Administration, were on
brief, for federal appellants.
Kristen Monsell, with whom Erica A. Fuller and Jane P.
Davenport were on brief, for intervenor-appellants.
Alfred C. Frawley IV, with whom Jay P. McCloskey, Paula D.
Silsby, Thimi R. Mina, and McCloskey, Mina, Cunniff & Frawley, LLC
were on brief, for appellees.
July 12, 2022
KAYATTA, Circuit Judge. In August 2021, the National
Marine Fisheries Service (the "Agency") issued a regulation that,
among other things, prohibited lobster fishing with vertical buoy
lines (the most common form of lobster fishing) each year between
mid-October and January in a 967 square mile zone of the Atlantic
Ocean, dubbed the LMA 1 Restricted Area. The stated purpose of
this seasonal closure was to guard against the possibility that
the large proliferation of lobster trap lines customarily placed
in the LMA 1 Restricted Area during that time would cause the death
of one or more of the few, severely endangered North Atlantic right
whales that the Agency estimated could travel in that area during
those months.
Plaintiffs -- a union of lobster fishers, two lobster-
fishing companies, and an individual lobster fisher -- challenged
the regulation as arbitrary and capricious in United States
district court, seeking an injunction barring the seasonal closure
of the LMA 1 Restricted Area to buoy-line lobster fishing. After
the district court granted a preliminary injunction enjoining
enforcement of the seasonal closure, the federal government and
intervening conservation groups appealed and sought a stay of the
district court's order.
After briefing and careful consideration of both the
district court's ruling and the record, we stayed the preliminary
injunction. See Dist. 4 Lodge of the Int'l Ass'n of Machinists
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Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 49–50 (1st Cir. 2021).
In an unusually extensive stay order, we spelled out in detail why
we found it unlikely that plaintiffs would prevail on appeal. We
determined that the Agency most likely did not exceed the bounds
of its wide discretion in factfinding by relying on statistical
modeling to define the time and place of the seasonal closure.
Id. at 45–46. We also found that the Agency adequately supported
the reasonableness of its admittedly imprecise inputs for that
model. Id. at 46–47. We then explained that Congress had already
placed a heavy thumb on the whale-side of the equities' scale, and
we did not see enough countervailing evidence to tip it the other
way. Id. at 47–49.
The appeal then proceeded to full briefing on the merits
of the government's challenge to the now-stayed injunction. And
since we consider basically the same factors when reviewing a
preliminary injunction on the merits as we do in considering a
stay motion, compare Winter v. NRDC, 555 U.S. 7, 20 (2008) (laying
out four-part test for preliminary injunctions), with Nken v.
Holder, 556 U.S. 418, 434 (2009) (laying out a similar test for
motions seeking a stay pending appeal), the handwriting was on the
wall for the appeal itself, so to speak.
Nevertheless, the possibility remained that in deciding
the stay motion on a necessarily expedited schedule, we might have
misapprehended the record or misread some authority. So, with the
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benefit of having our opinion on the stay motion, plaintiffs had
the opportunity to file a brief explaining specifically what
factual or legal error may have led us astray. Plaintiffs have
not done so. Rather, they have filed a brief that makes nearly no
effort to engage with our prior opinion. Even with more time and
a target to attack, plaintiffs have failed to give us any reason
to alter our initial analysis. We therefore vacate the preliminary
injunction and remand for further proceedings. Our reasoning,
with additional detail, follows.
I.
We assume familiarity with the background of this case
as laid out in our order granting the stay pending appeal, see
Dist. 4 Lodge, 18 F.4th at 41–42, but we briefly summarize the
dispute to enhance the readability of this stand-alone opinion.
The North Atlantic right whale is severely endangered.
In 2019, the Agency estimated that "even one additional death a
year increases the odds that the right whale will go extinct."
Id. at 41. "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." Id. "The Agency estimates
that just under five right whales per year suffer serious injury
or death due to entanglement in federally regulated fisheries."
Id.
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Following an unexplained uptick in right whale deaths in
2017, the Agency began considering several responses, including
restrictions on certain fishing gear and seasonal closure of
particularly risky fishing areas. Id. Relying on a peer-reviewed
"Decision Support Tool" -- a model designed to identify danger
zones for right whales -- the Agency decided 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." Id. This seasonal closure is what
was enjoined by the district court and is the subject of this
appeal.
II.
"A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest." Winter, 555 U.S. at 20.
"The first two factors are the most important." Together Emps. v.
Mass Gen. Brigham Inc., 32 F.4th 82, 85 (1st Cir. 2022) (citing
Nken, 556 U.S. at 434).
We review the entry of a preliminary injunction for
"abuse of discretion." Water Keeper All. v. Dep't of Def., 271
F.3d 21, 30 (1st Cir. 2001). "This deferential standard, however,
applies to 'issues of judgment and balancing of conflicting
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factors,' and we still review rulings on abstract legal issues de
novo and findings of fact for clear error." Id. (quoting
Cablevision of Bos., Inc. v. Pub. Improvement Comm'n, 184 F.3d 88,
96 (1st Cir. 1999)). "We consequently review the district court's
legal findings under the 'likelihood of success' prong de novo"
and "the district court's judgment calls, applying appropriate
standards, under the remaining three prongs for abuse of
discretion." Id. at 30–31.
A.
In its view of the merits, the district court found that
the Agency likely acted arbitrarily and capriciously by closing
the fishery "based on what appear[ed]" to the court "to be a
markedly thin statistical modeling methodology." Dist. 4 Lodge of
Int'l Ass'n of Machinists Loc. Lodge 207 v. Raimondo,
No. 21-cv-275, 2021 WL 4823269, at *11 (D. Me. Oct. 16, 2021).
The court also found that the Agency "ignored . . . a core aspect
of the problem," namely "whether right whales actually aggregate
in the LMA 1 Restricted Area." Id. at *12. It then concluded
that, although the Agency had the authority to impose the seasonal
closure, it could not do so until "traditional" evidence "either
substantiate[s] or contradict[s] its modeling effort." Id. at *8,
*12.
We explained in detail in our stay order how the district
court misapprehended the problem facing the Agency and improperly
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substituted its judgment for that of the Agency. See Dist. 4
Lodge, 18 F.4th at 44–47 (explaining that "[w]hale death by
entanglement requires the intersection of two objects: a line and
a whale," such that while "[a] large number of whales can certainly
pose a significant risk in the presence of even relatively few
lines," "just a few whales can also pose a significant risk in the
presence of a large number of lines"). We adopt those conclusions
here and focus instead on a handful of new or re-framed arguments
plaintiffs have since raised.
We begin with plaintiffs' only attempt to confront our
reasoning in granting the stay. On page 38 of their brief,
plaintiffs argue that we were led astray in reaching the conclusion
that the Agency "did everything it was supposed to do when using
a model[] [by] rel[ying] on the best evidence it had available and
updat[ing] the inputs as new information emerged." See Dist. 4
Lodge, 18 F.4th at 45 (citing Village of Bensenville v. FAA, 457
F.3d 52, 71 (D.C. Cir. 2006)). They contend that the Agency "made
no effort to verify [its assumptions] with concrete data" and that
the data it did have showed no whale presence in the LMA 1
Restricted Area during the season in question. In other words,
the Agency should not be permitted to rely on "substantial
uncertainty" when it could have, according to plaintiffs, obtained
more concrete data.
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This argument tangles together two contentions: (1) that
the Agency ignored existing data, and (2) that the Agency could
have and should have gathered additional, better data before
imposing the seasonal closure of the LMA 1 Restricted Area. As to
the first, plaintiffs' brief does not point to any relevant
existing data supposedly ignored by the Agency. Plaintiffs argue
repeatedly that the existing data only showed that, since about
2010, right whales have moved away from the Gulf of Maine during
the winter months and "aggregate" in places other than the LMA 1
Restricted Area, but the Agency did not ignore this fact. Rather,
the Agency explicitly acknowledged that the Gulf of Maine "is
slightly less important for right whales in recent years than
previously," but it nevertheless concluded that this area "remains
a potential hotspot for right whales during late fall and early
winter months" and that "acoustic data have still detected right
whales in this area in recent years." Nat'l Marine Fisheries
Serv., Final Environmental Impact Statement, Regulatory Impact
Review, and Final Regulatory Flexibility Analysis for Amending the
Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule
(FEIS) 81 (June 2021) ("Data from recent [acoustic] gliders
operating in offshore Maine waters during December and January in
2018 and 2019 detected the presence of right whales, with positive
detections within an area in the season and within the [LMA 1
Restricted Area]."); see also Nat'l Marine Fisheries Serv.,
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Biological Opinion (BiOp) 187–88 (May 27, 2021) ("anticipat[ing]
individual right whales to occur year round in the action area"
despite "[r]ecent changes in right whale distribution"); BiOp at
210 ("Because of substantial interannual and geographic variation
in whale occurrence and lack of complete data for seasonal
distributions, the potential exists for whales to interact with
gear used in the fisheries year-round throughout the entire action
area.").1
As to the claim that the Agency should have affirmatively
gathered more data before acting, plaintiffs point to the Agency's
supposed ability to "tag and track" whales. The Agency explained,
though, that tagging efforts "were halted on right whales out of
concerns regarding potential health impacts" and because, "despite
several decades of development, many of the technical and
logistical challenges of tagging continue to limit the utility of
this approach." Taking of Marine Mammals Incidental to Commercial
1 In the facts section of their brief, plaintiffs repeatedly
aver that "there has not been a single entanglement attributable
to Maine lobster gear since 2004." But, as we explained in our
stay order, "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." Dist. 4 Lodge, 18 F.4th at 46–47. The Agency explained
throughout its rulemaking that entanglements can very rarely be
definitively tied to any particular fishery or location. See,
e.g., FEIS at 46–48, 55–56; BiOp at 216. And "it is estimated
that only an average 36 percent of all mortalities between 1990
and 2017 were detected" at all. FEIS at 46. The Agency acted
reasonably in rejecting the implication that a lack of attribution
suggests a lack of occurrence.
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Fishing Operations; Atlantic Large Whale Take Reduction Plan
Regulations ("Final Rule"), 86 Fed. Reg. 51,970, 51,994 (Sept. 17,
2021). Moreover, the Agency has continued to gather more data, as
we observed in our prior opinion. See Dist. 4 Lodge, 18 F.4th at
47. In the interim, though, it was faced with a peer-reviewed
model predicting that the maze of lines in the LMA 1 Restricted
Area in the winter months -- coupled with the possibility that a
few right whales would traverse the area -- would result in a whale
fatality unless the Agency acted. So it acted, and did so under
a statutory mandate to move with celerity. See 16 U.S.C.
§ 1387(a)(1), (f)(2), (f)(5), f(7). In such circumstances, we see
no reason why it would be precluded from acting as it did. Cf.
Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 61 (D.C.
Cir. 2000) (concluding that it is error to require an agency to
gather more data "that is arguably susceptible to discovery" if no
statute requires it).
Plaintiffs also contend that data on the location of
right whales in Canadian waters would have (had it been collected)
undermined the Agency's decision to apportion whale deaths between
the countries equally. Although the Agency acknowledged that the
number of whales in Canada (and the US) is unknown at any given
time, a peer-review panel determined that 50/50 apportionment was
"reasonable." BiOp at 217; Final Rule, 86 Fed. Reg. at 51,976.
Plaintiffs claim that the peer reviewers disagreed with this
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apportionment. To the contrary, while the reviewers disagreed
with the accuracy of the precise allocation, they nonetheless
affirmed that a 50/50 split was reasonable. BiOp at 217. The
Agency's explanation and reliance on the peer-review panel is
enough to pass arbitrary-and-capricious review; we do not require
perfect accuracy.
Next, plaintiffs contend that seasonal closure of the
LMA 1 Restricted Area contradicted the Agency's own formulation of
its mandate without adequate explanation. According to
plaintiffs, the Agency is bound by statements that said that it
would "[d]irect the most protections to areas of predictable high
seasonal aggregations of right whales" and that its "primary goal
was to find areas and seasons where there was an increased
likelihood of right whale presence while minimizing undesirable
consequences." FEIS at 75, 78. Plaintiffs, however, have simply
plucked these isolated statements out of context from a
nonexclusive list of "guiding principles," not a mandate. Id. at
75. And, in any event, the Agency stated that it was also looking
for "[h]otspots of high buoy line and right whale co-occurrence,"
not just right whale aggregation. Id. at 78. The record simply
belies plaintiffs' argument that the Agency has impermissibly
"switch[ed] course."
Finally, plaintiffs fault the Agency for rejecting two
alternatives proposed by commenters. They first contend that the
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Agency could have done a hybrid closure with another area of the
ocean where Maine lobster harvesters do not set traps. The Agency
rejected that approach because it "determined that there was
minimal benefit from the [other] side" as "vessels [who fish in
that area of the ocean] are adopting [other] measures that provide
greater risk reduction." Final Rule, 86 Fed. Reg. at 51,997. That
explanation is not arbitrary and capricious. Plaintiffs also fault
the Agency for rejecting "the notion of using dynamic management
to protect temporary [right whale] aggregations." But the Agency
explained that it lacks the resources to support an intensive
surveillance program and that it lacks any real time data to
develop an effective trigger for "dynamic management." Id. at
51,995–96. Though plaintiffs second-guess that decision now for
a variety of reasons, we see nothing suspect about it. These
complaints regarding rejected alternatives merely seem to rehash
plaintiffs' main grievance: that the Agency did not "focus on areas
of predictable seasonal aggregations of right whales." We have
already explained why the Agency's decision not to do so was
neither arbitrary nor capricious.2
For these reasons, and those stated in our stay order,
we conclude that plaintiffs are unlikely to succeed on the merits
2 For the same reasons, we reject plaintiffs' contention that
the Agency should have focused on "fishing activities in the
southern states where the whales actually breed."
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of their claim. This factor weighs heavily against a preliminary
injunction. See ANSYS, Inc. v. Computational Dynamics N. Am.,
Ltd., 595 F.3d 75, 78 (1st Cir. 2010) ("The first factor,
likelihood of success, is usually given particularly heavy
weight.").
B.
That leaves for consideration the factors of irreparable
harm, the balance of the equities, and the public interest.
Regarding these three factors, plaintiffs offer no arguments not
already taken into consideration in our opinion granting the stay
of the district court's injunction. They claim once again that
the seasonal closure will "present[] a major financial hardship"
to "those who set traps annually in the restricted area." Dist.
4 Lodge, 18 F.4th at 49. Without an injunction (or government
funding), we do not doubt that.
We also do not doubt, though, that the loss of even one
right whale caught in a thicket of trap lines in the LMA 1
Restricted Area would be irreversible. So, we reiterate what we
said in our stay order: Here, "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." Id. (internal quotation marks omitted)
(quoting Strahan v. Coxe, 127 F.3d 155, 171 (1st Cir. 1997)).
Indeed, Congress instructed the Agency to "halt and reverse the
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trend toward species extinction, whatever the cost." TVA v. Hill,
437 U.S. 153, 184 (1978). Although this does not mean the balance
will always come out on the side of an endangered marine mammal,
it does leave plaintiffs beating against the tide, with no more
success than they had before.
III.
For the foregoing reasons, the preliminary injunction is
vacated, and the case is remanded to the district court for further
proceedings consistent with this opinion. The parties will bear
their own costs.
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