Center For Biological Diversity v. Raimondo

Background

The Center for Biological Diversity (CBD) sued the National Marine Fisheries Service (NMFS) and Secretary of Commerce Gina Raimondo under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). The dispute concerns a 2021 permit authorizing the incidental taking of ESA-listed humpback whales in the Washington/Oregon/California sablefish pot fishery. The fishery uses tens of thousands of pots connected in long strings, and whales can become entangled in the gear, causing injury and sometimes death.

The MMPA requires certain findings before NMFS may issue a permit authorizing the incidental taking of ESA-listed marine mammals during commercial fishing. One requirement is that a take reduction plan—a plan intended to reduce marine-mammal deaths and serious injuries from fishing—has been developed or is being developed when required under the MMPA.

Cross-Motions for Summary Judgment

The parties filed cross-motions for summary judgment. The court reviewed the agency’s action under the Administrative Procedure Act, which permits a court to set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise unlawful.

The parties did not dispute that NMFS issued the 2021 permit without developing or beginning work on a take reduction plan for the humpback whales. NMFS’s assessment concluded that the requirement was satisfied because the plan was on a priority list, even though it was neither complete nor underway.

NMFS argued that a statutory provision addressing insufficient funding allowed the agency to prioritize take reduction plans and not develop one immediately. CBD argued that this funding provision applied only in a limited situation and did not excuse the agency from the permit requirement here.

Court’s Analysis

The court held that the MMPA’s text required a take reduction plan for the whales involved in this fishery. Section 1387(f)(1) states that NMFS shall develop and implement such plans for strategic marine-mammal stocks that interact with commercial fisheries causing at least occasional incidental mortality or serious injury. The court concluded that the ESA-listed humpback whales and the sablefish pot fishery fit those conditions.

The court emphasized the difference between the statute’s use of shall for mandatory duties and may for discretionary authority. It also concluded that the agency’s ability to prioritize the order in which plans are developed does not turn a mandatory duty into a discretionary one.

The court further held that the MMPA’s take-reduction-plan provisions operate together with the separate permit requirement. Although the insufficient-funding provision might provide relief from some deadlines for developing plans, the court said that question did not need to be resolved. NMFS could not indefinitely delay developing a plan while continuing to authorize permits for the incidental taking of endangered and threatened humpback whales.

Ruling and Further Proceedings

The court concluded that NMFS acted arbitrarily and capriciously when it found the permit requirements satisfied without a take reduction plan being under development. It held that the 2021 permit authorizing the incidental taking of humpback whales in the pot fishery was unlawful.

Summary judgment was granted to CBD on its second claim, which alleged that NMFS violated the MMPA and the Administrative Procedure Act by issuing the 2021 permit. The court stated that CBD’s motion was granted in part. It deferred consideration of the appropriate remedy and CBD’s challenge to NMFS’s 2020 biological opinion pending further proceedings. A status conference was set for April 20, 2023, to discuss those issues and the next steps.