CENTER FOR BIOLOGICAL DIVERSITY et al v. ROSS et al
Filing
261
MEMORANDUM OPINION re. Order 260 on Motions to Dismiss. Signed by Chief Judge James E. Boasberg on 1/29/2024. (lcjeb2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Plaintiffs,
v.
GINA RAIMONDO, et al.,
Civil Action No. 18-112 (JEB)
Defendants,
and
MAINE LOBSTERMEN’S
ASSOCIATION, INC.,
et al.,
Intervenor-Defendants.
MEMORANDUM OPINION
For six years now, Plaintiff conservation groups have battled with the National Marine
Fisheries Service over regulations that they believe are woefully insufficient to save the
dwindling North Atlantic right-whale population from death or injury caused by entanglement in
lobster-fishing gear. Twice, this Court has awarded summary judgment in their favor based on
clear procedural flaws in NMFS’s biological opinions on this subject and substantive
deficiencies in its right-whale conservation measures under the Endangered Species Act and
Marine Mammal Protection Act. The tide has recently turned in the lobstermen’s favor,
however. Coming to their aid, Congress has since enacted legislation declaring that NMFS’s
existing regulations are “sufficient” through 2028, while the agency explores novel technological
solutions and crafts new rules potentially incorporating them. And the D.C. Circuit has since
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ruled in the lobstermen’s favor in a related case, vacating the agency’s most recent biological
opinion as being too fishing restrictive.
The question before the Court now is whether any of the conservation groups’ claims
survive these two developments. Insistent that they do not, both NMFS and DefendantIntervenor lobstermen have moved to dismiss the case as moot and to vacate seven of the Court’s
prior Opinions and Orders. While Plaintiffs vigorously oppose, they paddle against the current
largely in vain. Finding that all claims in this case are now moot, the Court will grant the
Motions to Dismiss but vacate only some of its previous rulings.
I.
Background
As the Court has noted before, this case has washed up on its shores on many occasions.
See Ctr. for Biological Diversity v. Raimondo, 610 F. Supp. 3d 252, 263 (D.D.C. 2022) (CBD
IV); see also Ctr. for Biological Diversity v. Raimondo, 2022 WL 17039193 (D.D.C. Nov. 17,
2022) (CBD V); Ctr. for Biological Diversity v. Ross, 480 F. Supp. 3d 236 (D.D.C. 2020) (CBD
III); Ctr. for Biological Diversity v. Ross, 613 F. Supp. 3d 336 (D.D.C. 2020) (CBD II); Ctr. for
Biological Diversity v. Ross, 349 F. Supp. 3d 38 (D.D.C. 2018) (CBD I). The Court
nevertheless recounts the relevant procedural history.
Conservation groups believe that NMFS has not sufficiently protected the endangered
North Atlantic right whale in its regulation of the American-lobster and Jonah-crab fisheries,
thereby violating numerous provisions of the Endangered Species Act, Marine Mammal
Protection Act, and Administrative Procedure Act. Their initial Complaint, filed in January
2018, alleged four counts: (1) violation of Section 7(a)(2) of the ESA and APA by the issuance
of an inadequate biological opinion (the 2014 BiOp) that improperly concluded that the
continued operation of the American lobster fishery would not jeopardize the existence of the
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right whale (Count I); (2) violation of Section 7(a)(2) of the ESA via reliance on the 2014 BiOp
and thereby failing to insure against jeopardy (Count II); (3) the causing of unauthorized “take”
(i.e., death, injury, or other specified harm, see 16 U.S.C. § 1532(19)) of the right whale in
violation of Section 9 of the ESA (Count III); and (4) the causing of unauthorized take of the
whale in violation of similar provisions of the MMPA — 16 U.S.C. §§ 1371(a), 1372(a) — and
the APA (Count IV). See ECF No. 1 (Compl.), ¶¶ 117–39.
This Court granted summary judgment in 2020 for the conservation groups on one part of
the first count. See CBD II, 613 F. Supp. 3d at 345, 348. It found, more specifically, that the
2014 BiOp violated the ESA because the statute and its regulations “require an [Incidental Take
Statement] when the taking of an endangered species is anticipated”; “[t]ake was anticipated
here, and NMFS did not produce an ITS.” Id. at 345. The Court later vacated the BiOp, but
stayed the Order until May 31, 2021, to allow the agency time to complete its ongoing
rulemaking, which the agency anticipated would result in a new BiOp and new right-whale
conservation measures. See CBD III, 480 F. Supp. 3d at 246, 256. The new BiOp and Final
Rule were at last issued on May 27 and September 17, 2021 (respectively). See CBD IV, 610 F.
Supp. 3d at 263; 86 Fed. Reg. 51,970 (Sept. 17, 2021).
Still dissatisfied, Plaintiffs filed an Amended Complaint re-alleging Counts III and IV,
and adding four more: (1) violation of the ESA and APA by issuing a substantively inadequate
biological opinion (the 2021 BiOp) (Count V); (2) violation of the ESA and APA by a failure to
include a lawful incidental take statement in that BiOp (Count VI); (3) violation of the MMPA
and APA by the issuance of a final rule (2021 Final Rule) that “fails to contain measures to
reduce right whale mortality and serious injury to [requisite] levels” within six months (Count
VII); and (4) violation of the MMPA and APA by a failure to reduce right-whale mortality and
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serious injury to insignificant levels approaching zero (Count VIII). See ECF No. 170 (Am.
Compl.), ¶¶ 13, 130–56; see also ECF No. 188-1 (Pl. SJ Mot.) at 13, 42 (requesting relief on
claims III–VIII).
In July 2022, the Court once again granted summary judgment for the conservation
groups — this time as to Counts IV, VI, and VII. See CBD IV, 610 F. Supp. 3d 252. That
decision rested on two key findings: first, that “NMFS violated the ESA by failing to satisfy the
MMPA’s ‘negligible impact’ requirement before setting the authorized level of lethal take in its
ITS,” and second, that it “breached the time requirements mandated by the MMPA in the 2021
Final Rule.” Id. at 257. In November of that year, the Court remanded the Final Rule to the
agency without vacatur, and it also remanded the BiOp, but held the question of whether to
vacate that BiOp in abeyance until December 2024, at which time the Court expected the agency
would have issued a new final rule that would be more protective of the whale. See CBD V,
2022 WL 17039193. So matters stood until two intervening pro-lobstermen developments
placed the continued enforceability of the Court’s remedial Order (and the existence of a live
controversy between the parties) in question.
First, just two months later, Congress enacted the Consolidated Appropriations Act of
2023, which effectively imposed a six-year pause on challenges to the sufficiency of existing
right-whale conservation measures affecting the American-lobster fishery. It provided, in
relevant part:
[F]or the period beginning on the date of enactment of this Act and
ending on December 31, 2028, the Final Rule amending the
regulations implementing the Atlantic Large Whale Take Reduction
Plan (86 Fed. Reg. 51970) shall be deemed sufficient to ensure that
the continued Federal and State authorizations of the American
lobster and Jonah crab fisheries are in full compliance with the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.)
and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
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The National Marine Fisheries Service shall . . . promulgate new
regulations for the American lobster and Jonah crab fisheries
consistent with the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361 et seq.) and the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.) that take effect by December 31, 2028.
Pub. L. No. 117-328, Division JJ, § 101(a), 136 Stat. 4459, 6089–90 (2022).
This provision was ostensibly a reaction to the Court’s November 2022 Order, which
Maine officials and members of Congress feared could shutter the state’s lobster industry. See,
e.g., 168 Cong. Rec. S9607 (daily ed. Dec. 20, 2022) (statement of Sen. Angus King) (“In
November, a Federal court here in Washington issued a ruling . . . that effectively shuts down the
entire Maine lobster fishery in 2 years. . . . [A] solution to this crisis is in the bill that we will be
voting on[,] . . . [which provides] a 6-year period that will give us time to develop the technology
and to develop the data [that may point to] . . . different solutions.”).
Second, in June 2023, the D.C. Circuit handed the lobster interests another victory. In
that related case, the Maine Lobstermen’s Association, Maine Department of Marine Resources,
and Massachusetts Lobstermen’s Association (among other plaintiffs) had sued NMFS, alleging
that the 2021 BiOp exaggerated the risks their fisheries posed to the right-whale population and
that the 2021 Final Rule would decimate their business. See Maine Lobstermen’s Ass’n, Inc. v.
Nat’l Marine Fisheries Serv., 626 F. Supp. 3d 46, 55 (D.D.C. 2022). Although this Court
initially granted summary judgment for the Service, finding its regulations were reasonable, the
Circuit reversed that Order, reasoning that the Service had improperly relied upon “worst-case
scenarios or pessimistic assumptions” in determining whether the fishery “jeopardize[d]” the
survival of the right whale. Maine Lobstermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 70
F.4th 582, 586 (D.C. Cir. 2023). It further directed this Court to enter summary judgment for the
lobstermen plaintiffs on two counts; vacate the 2021 BiOp, as applied to the lobster and Jonah-
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crab fisheries (but not as to various other federal fisheries addressed in that document); and
remand the 2021 Final Rule without vacatur for the agency to determine whether modifications
are appropriate, id. at 593–95, 602 — all of which were executed through the Court’s October
30, 2023, Minute Order. Maine Lobstermen’s Ass’n v. Nat’l Marine Fisheries Serv., No. 212509 (D.D.C.), Minute Order of Oct. 30, 2023.
The Federal Defendants and Defendant-Intervenor lobstermen in this case have now
moved to dismiss all of the conservation groups’ remaining claims as moot and to vacate seven
of the Court’s prior Opinions and Orders — viz., the October 4, 2018, Opinion and Order
granting discovery (ECF Nos. 41 & 42); the April 9, 2020, Opinion and Order granting summary
judgment on Count I, which challenged the 2014 BiOp (ECF Nos. 90 & 91); the July 8, 2022,
Opinion and Order granting summary judgment on three other counts challenging the 2021 BiOp
and 2021 Final Rule (ECF Nos. 218 & 219); and the November 17, 2022, remedy Order (ECF
No. 239).
II.
Analysis
The Service and the lobstermen contend that the enactment of the CAA and the vacatur
of the 2021 BiOp moots the case because, with respect to the 2021 Final Rule, the former
precludes the Court from granting the relief Plaintiffs seek as a matter of law, and, with respect
to the 2021 BiOp, the latter leaves nothing from which to be relieved. See ECF Nos. 255-1 (Fed.
Defs. Mot.) at 1–2; 256 (Lobstermen Mot.) at 5–9. They further contend that vacatur of Orders
and Opinions is warranted because they had no opportunity to appeal the Court’s decisions,
which are all now unreviewable on the merits. The conservation groups, for their part, wisely
concede that Counts III–V — which challenged NMFS’s continued authorization of the
American lobster fishery and the 2021 BiOp’s no-jeopardy finding — are moot. See ECF No.
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257 (Pl. Opp.) at 6 n.3. They nonetheless insist that Counts VI–VIII — which targeted the 2021
BiOp’s incidental-take statement, the 2021 Final Rule, and NMFS’s ongoing failure to reduce
right-whale take within the MMPA’s deadlines — are still live. Id. And regardless of the
Court’s conclusions on mootness, they oppose vacating any prior decisions. Id. at 32.
The Court, following the parties’ lead, shall address whether a controversy still exists as
to the latter three counts before turning to the question of vacatur.
A. Mootness
Article III of the Constitution limits federal courts’ jurisdiction to “actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). If “events have so transpired that [a
judicial] decision will neither presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future,” the case is moot, and a court lacks
jurisdiction to entertain the suit. Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534
(D.C. Cir. 2015) (cleaned up); see Nat’l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346,
349 (D.C. Cir. 1997) (“[A] federal court has no power to render advisory opinions or decide
questions that cannot affect the rights of litigants in the case before [it].”) (cleaned up). “But a
case becomes moot only when it is impossible for a court to grant any effectual relief whatever
to the prevailing party. As long as the parties have a concrete interest, however small, in the
outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(cleaned up).
“In at least two kinds of cases,” moreover, “the fact that the specific conduct that gave
rise to the case has ceased does not mean that the challenge to the legality of that conduct is
moot.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009).
First, a plaintiff may seek declaratory relief as to an “ongoing policy.” Id. Second, a claim for
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declaratory relief will not be moot if the claim “fits the exception for cases that are capable of
repetition, yet evading review, or falls within the voluntary cessation doctrine.” Id. (citation
omitted).
To assess mootness, the Court “must first define the ‘wrong’ alleged in the complaint ‘in
terms of the precise controversy it spawns,’” Maldonado v. Dist. of Columbia, 61 F.4th 1004,
1006 (D.C. Cir. 2023) (quoting PETA v. Gittens, 396 F.3d 416, 422 (D.C. Cir. 2005)), and then
determine whether it is still possible to grant “any effectual relief whatever” as redress. Chafin,
568 U.S. at 172 (citation omitted). That analysis must proceed claim by claim. See Am.
Oversight v. Biden, 2021 WL 4355576, at *4 (D.D.C. Sept. 24, 2021).
Count VI
Begin with Count VI. It challenged the 2021 BiOp as unlawful under the ESA and APA
given NMFS’s failure to include “a lawful [Incidental Take Statement] authorizing” the rightwhale deaths and injuries it anticipated the American-lobster and Jonah-crab fisheries would
cause even upon full implementation of the Final Rule. See Am. Compl., ¶¶ 138–47. That
biological opinion, however, has already been vacated as to that fishery on different grounds
pursuant to the D.C. Circuit’s mandate in MELA, 70 F.4th at 602. See MELA v. NMFS, No. 212509 (D.D.C.), Minute Order of Oct. 30, 2023. “To ‘vacate,’ as the parties should well know,
means ‘to annul; to cancel or rescind; to declare, to make, or to render, void; to defeat; to deprive
of force; to make of no authority or validity; to set aside.’” Action on Smoking & Health v.
C.A.B., 713 F.2d 795, 797 (D.C. Cir. 1983) (citation omitted). There is, ergo, no longer any
harm from which Plaintiffs can be relieved with respect to that BiOp, and the claim is
straightforwardly moot. See Alabama Power Co. v. U.S. EPA, 40 F.3d 450, 456 (D.C. Cir.
1994) (decision to vacate EPA rule on one ground “moots the issue” of whether it is unlawful on
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another ground); cf. Akiachak Native Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100, 106 (D.C.
Cir. 2016) (“Because [the relevant Department of Interior] regulation no longer exists, we can do
nothing to affect [plaintiffs’] rights relative to it, thus making this case classically moot for lack
of a live controversy.”) (emphasis added).
Perhaps recognizing this, the conservation groups attempt to refashion Count VI as a
challenge not just to the 2021 BiOp but also to NMFS’s purportedly ongoing “policy and
practice of failing to authorize right whale incidental take under the MMPA as a condition
precedent to issuing a valid (and mandatory) ITS under the ESA” — an error for which they
contend declaratory relief remains available. See Pl. Opp. at 17. In service of this point, they
marshal a collection of prior biological opinions suggesting that the lack of an ITS (and
corresponding failure to authorize right-whale incidental take) is a perennial issue. See id. at 20–
21, 23.
Putting aside whether such conduct even amounts to a “policy and practice,” Plaintiffs
clearly did not allege it in their Complaint. Count VI claims only that “[t]he 2021 BiOp fails to
include a lawful ITS for [the] anticipated lethal take of right whales,” and Plaintiffs’ prayer for
relief requests a declaration “that NMFS’s 2021 BiOp violates the ESA and APA.” Am. Compl.,
¶ 143 (emphasis added); id. at 35 (emphasis added). Aside from the passing assertion that the
agency “has never authorized” right-whale incidental take, id., ¶ 141, the Complaint does not
reference the prior biological opinions that Plaintiffs now offer for the first time as exhibits. And
notwithstanding their vague allusions to “history repeating itself” in some of their prior
pleadings, see Pl. Opp. at 21, they never actually sought summary judgment or declaratory relief
on a “policy and practice” claim. Such flimsy material — conjured up at the eleventh hour —
cannot mend the hole in Plaintiffs’ sinking ship. See Clarke v. United States, 915 F.2d 699, 703
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(D.C. Cir. 1990) (en banc) (“[W]here plaintiffs are resisting a mootness claim we think they
must be estopped to assert a broader notion of their injury than the one on which they originally
sought relief.”).
Some of the cases that the conservation groups themselves have cited only drive this
point home. See Pl. Opp. at 21. In City of Houston v. Department of Housing and Urban
Development, 24 F.3d 1421 (D.C. Cir. 1994), for example, the city challenged a decision by
HUD to reduce its congressionally appropriated block grant in the 1986 fiscal year without
having conducted a hearing, but the funds had expired while the litigation was pending. Id. at
1424. In considering whether the city’s request for declaratory judgment saved the case from
mootness, the D.C. Circuit faulted the plaintiff for having “focused almost exclusively on its
attempt to recover the 1986 penalty” during much of the litigation and expressed doubt as to
whether its “passing references to HUD’s alleged ‘policy’ of acting without a hearing suffice to
prevent the mooting of its entire case” — though it ultimately declined to decide that issue. Id. at
1430.
Similarly, in Fraternal Order of Police, D.C. v. Rubin, 134 F. Supp. 2d 39 (D.D.C. 2001),
another court in this district dismissed as moot the plaintiffs’ suit, which sought declaratory and
injunctive relief (in part) for alleged First Amendment violations arising from an internal Secret
Service investigation, because the investigation had concluded. Id. at 40–41, 45. That court
outright rejected the plaintiffs’ efforts to keep the case alive by “broaden[ing] the scope of their
original action.” Id. at 42. Because the “complaint [did] not allege systematic coercive conduct
on the part of the Secret Service,” the court declined to entertain such a theory newly contrived
in opposition to the motion to dismiss. Id. at 43. This Court strains to see any relevant
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difference between Plaintiffs’ makeshift “policy and practice” theory and the similarly
improvised legal theories rejected (or viewed askance) in City of Houston and Rubin.
Plaintiffs’ other cases, moreover, do not significantly aid their cause because they are
easily distinguished. Consider Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir.
1988), in which the D.C. Circuit concluded that a plaintiff’s lawsuit seeking Air Force bid
abstracts under the Freedom of Information Act was not mooted upon release of the requested
records. There (unlike here) the plaintiff had explicitly challenged the informal policy under
which his request was initially denied. See id. at 491 n.9 (contrasting case with prior D.C.
Circuit case in which plaintiff made as-applied — but not facial — challenge to Air Force FOIA
regulation, and release of documents thus mooted case). In Super Tire Engineering Co. v.
McCorkle, 416 U.S. 115 (1974), likewise, a lawsuit challenging a New Jersey policy that made
striking employees eligible for state-welfare benefits was not mooted when the strike at issue had
ended, in part because the complaint sought declaratory relief from the policy itself. Id. at 117–
18, 121–23. And the complaint in Mid-Ohio Food Bank v. Lyng, 670 F. Supp. 403 (D.D.C.
1987), had explicitly requested an order declaring that the President may not defer
congressionally appropriated funds for policy reasons — a form of relief that remained live even
after the deferred funds at issue were restored. Id. at 404. Here, there is simply no comparable
language in the conservation groups’ prayer for relief or their Complaint generally.
While it is undoubtedly true that a challenge to a policy “is not necessarily mooted
merely because the challenge to the particular agency action is moot,” Pl. Opp. at 21 (quoting
City of Houston, 24 F.3d at 1428), Plaintiffs have alleged no such policy. Not in Count VI and
not elsewhere. The count will therefore be dismissed.
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Count VII
Count VII fares no better. Recall that it challenged the 2021 Final Rule as unlawful
under the MMPA and APA because it “fail[ed] to contain measures to reduce right whale
mortality and serious injury to below [potential biological removal level] within six months.”
Am. Compl., ¶¶ 148–51. Conservation groups asked the Court to declare that the Rule violates
the MMPA and remand it without vacatur. Id. at 35. Prior to the enactment of the CAA, the
Court did exactly that.
But such relief, at this point, would violate the CAA. The Act provides that the 2021
Final Rule “shall be deemed sufficient to ensure” that existing “authorizations” of the lobster
fishery comply with the MMPA and ESA until December 31, 2028. See Pub. L. 117-328, 136
Stat. 6090. It further directs NMFS to use that time to “promote the innovation and adoption of
gear technologies” and “promulgate new regulations” for the fishery potentially incorporating
such technologies by that date. Id. As the D.C. Circuit instructed in MELA, the statute is “best
read to set a temporary ceiling, not a floor, for compliance by the lobster and Jonah crab
fisheries,” which is consistent with its purpose “to postpone the deadline set” by this Court’s
November 2022 Order, “giving the lobstermen more lead time” while NMFS develops a new
rule. See 70 F.4th at 594. It thus precludes this Court from mandating right-whale conservation
measures affecting the lobster fishery that are more stringent than the 2021 Final Rule until the
new rule takes effect in 2028. As a ruling in Plaintiffs’ favor on Count VII would require such a
mandate, the claim is moot. See Am. Bar Ass’n, 636 F.3d at 643 (“It is well established that a
case must be dismissed as moot if new legislation addressing the matter in dispute is enacted
while the case is still pending.”); Nuclear Energy Inst., Inc. v. Env’t Prot. Agency, 373 F.3d
1251, 1309 (D.C. Cir. 2004) (“Where Congress enacts intervening legislation that definitively
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resolves the issues a litigant seeks to put before us, the claims are moot and we are precluded
from deciding them.”); see also, e.g., United States v. Microsoft Corp., 138 S. Ct. 1186 (2018)
(dismissing case as moot where Congress enacted appropriations bill resolving question on
which certiorari was granted).
Insisting otherwise, the conservation groups protest that the Act did not deem the 2021
Final Rule itself sufficient under the ESA and MMPA. Rather, they argue, it declared only that
NMFS’s “authorizations” of the lobster fishery were compliant with both Acts, see Pub. L. No.
117-328, 136 Stat. 4459, 6090 — most relevantly, the authorization certificate NMFS may issue
under section 118(c), 16 U.S.C. § 1387(c)(2)(A), allowing registered commercial fisheries to
incidentally take marine mammals. See Pl. Opp. at 12–13, 27. Because their “Seventh Claim
arises from NMFS’s actions amending the [Atlantic Large Whale Take Reduction] Plan under
section 118(f), not its actions authorizing the fishery under section 118(c),” the conservation
groups suppose, the CAA does not preclude this Court from issuing a declaration that the Final
Rule violated the six-month deadline in MMPA section 118(f)(2). See Pl. Opp. at 27.
While certainly creative, this argument wars with common sense. First, the incidentaltake authorization under section 118(c) only permits such taking if the fishery complies with
“any applicable take reduction plan.” 16 U.S.C. § 1387(c)(3)(A)(iv); see id. § 1387(c)(3)(D),
(4)(B). The applicable plan here, as Plaintiffs note, is the Atlantic Large Whale Take Reduction
Plan, including the amendments made to it by the 2021 Final Rule. Therefore, even if the word
“authorization” is confined to the permission granted under subsection (c), the 2021 Final Rule
would still determine what exactly the lobster fishery is authorized to do. If NMFS’s
“authorization,” so defined, complies with the ESA and MMPA (as the CAA clearly states), then
the Final Rule necessarily complies with them as well.
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Second — it bears repeating — the relevant statutory clause begins with the words “the
Final Rule . . . shall be deemed sufficient.” Pub. L. 117-328, 136 Stat. 6090. In plain English,
the conservation measures introduced in that regulation are now deemed by law to reduce rightwhale mortality and serious injury caused by the American-lobster fishery enough that NMFS
does not violate either the ESA or MMPA by allowing the fishery to continue operating (at least
for now). Yet Plaintiffs’ interpretation would read those first few words as a nullity — as though
Congress blessed the agency’s authorization of the fishery independent of whether the Final Rule
itself was adequate. See United States v. Oral George Thompson, 921 F.3d 263, 272 (D.C. Cir.
2019) (Millett, J., concurring in part) (“[A] cardinal rule of statutory construction is that courts
should not discard duly enacted statutory text as meaningless verbiage.”).
It is not lost on the Court, moreover, that its November 2022 remedial Order (which
provided redress on the counts on which it had granted summary judgment, including Count VII)
was a key impetus for including these temporary protections for the lobster fishery in the
appropriations bill. See 168 Cong. Rec. S9607 (daily ed. Dec. 20, 2022) (statement of Sen.
King) (expressing concern that the Court’s remedy Order “effectively shuts down the entire
Maine lobster fishery in 2 years”). While this point is by no means dispositive, it would seem a
bridge too far to read this provision of the CAA as consistent with an order it was intended to
countermand. See Honeycutt v. United States, 581 U.S. 443, 453–54 (2017) (highlighting where
legislative history “confirms” Court’s construal of text, “for those who find it relevant”).
In short, Congress has spoken. The text and legislative history of the CAA dictate that
the Final Rule is sufficient under the ESA and MMPA until December 31, 2028. As the Court is
powerless to declare otherwise, Plaintiffs’ seventh claim shall be dismissed as moot.
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Count VIII
The eighth count meets the same fate for essentially the same reason. It challenged
NMFS’s “ongoing failure to reduce right whale mortality and serious injury to [i]nsignificant
levels approaching [zero] within the timeline mandated by the MMPA” as an “agency action
unlawfully withheld or unreasonably delayed” under the APA. See Am. Comp., ¶¶ 152–56
(emphasis added); see also § 1387(a)(1), (b), (f)(2). Although the count does not, by its terms,
challenge the 2021 Final Rule, that is its practical effect. The mechanism by which NMFS may
reduce right-whale mortality and serious injury is a take-reduction plan. See § 1387(f)(1)–(2).
Relief as to this count would thus necessitate more stringent conservation measures than the
Final Rule currently provides. Per the CAA, such relief is unavailable until after 2028. This
final domino, accordingly, falls just like the others.
*
*
*
The Court also finds, as Plaintiffs concede, that neither the voluntary-cessation nor
capable-of-repetition mootness exception is relevant here. See Pl. Opp. at 6 n.3.
B. Vacatur
Vacatur is “normally appropriate once a case is determined to be moot,” as the Supreme
Court noted in United States v. Munsingwear, Inc., 340 U.S. 36 (1950), “because it ‘clears the
path for future relitigation of the issues between the parties and eliminates a judgment, review of
which was prevented through happenstance.’” Am. Bar Ass’n v. FTC, 636 F.3d 641, 648 (D.C.
Cir. 2011) (quoting Munsingwear, 340 U.S. at 40). Although framed therein as a practice of
appellate review, district courts have since cited this principle as a basis for vacating their own
orders. E.g., St. Lawrence Seaway Pilots’ Ass’n v. Collins, 2005 WL 1138916, at *2 (D.D.C.
May 13, 2005); see also Fund For Animals v. Mainella, 335 F. Supp. 2d 19, 25–26 (D.D.C.
15
2004) (collecting cases). Its application, however, is an “equitable matter” and “not automatic in
all situations.” Am. Bar Ass’n, 636 F.3d at 649 (citing U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 23–25 (1994)); see also Bancorp, 513 U.S. at 24, 26 (noting that Supreme
Court has “disposed of moot cases in the manner most consonant to justice[,] in view of the
nature and character of the conditions which have caused the case to become moot”). “It is [the
movant’s] burden, as the party seeking relief from the status quo . . . to demonstrate . . . equitable
entitlement to the extraordinary remedy of vacatur.” Bancorp, 513 U.S. at 26.
At least four considerations bear on a court’s determination: (1) “whether the party
seeking [vacatur] caused the mootness by voluntary action,” id. at 24 (denying vacatur where
case was mooted by parties’ settlement); (2) whether that party “slept on its rights” by failing to
diligently seek review of the merits by a higher court, Munsingwear, 340 U.S. at 40–41; see also
Mahoney v. Babbitt, 113 F.3d 219, 221–22 (D.C. Cir. 1997) (denying vacatur where losing party
failed to appeal circuit panel’s decision on merits to en banc court or seek emergency stay from
Circuit Justice); (3) the preclusive effect of the challenged decision, see Mahoney, 113 F.3d at
222 (“[I]t is generally accepted that a mooted judgment should not preclude the litigants in future
litigation[.]”); and (4) the public interest, taking into account the inherent value of judicial
precedents. See Bancorp, 513 U.S. at 26–27 (“Judicial precedents are presumptively correct and
valuable to the legal community as a whole. They are not merely the property of private litigants
and should stand unless a court concludes that the public interest would be served by a vacatur.”)
(citation omitted).
Because the application of these rules differs between the Opinions and Orders issued
from 2018 to 2020 addressing Plaintiffs’ initial challenge to the 2014 BiOp (ECF Nos. 41, 42,
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90, 91) and the 2022 Opinions and Orders addressing their subsequent challenge to the 2021
BiOp and Final Rule (ECF Nos. 218, 219, 239), the Court will address each group separately.
2018–20 Opinions & Orders
NMFS and the lobstermen seek to vacate the Court’s October 4, 2018, Opinion and Order
granting the conservation groups’ request for discovery on two counts of their original
Complaint, and its April 9, 2020, Opinion and Order granting summary judgment for Plaintiffs
on one count (and declaring the 2014 BiOp to be invalid under the ESA). See Fed. Defs. Mot. at
18–19; Lobstermen Mot. at 9. The agency’s chief complaint is that by mooting the case, MELA
and the CAA deprived it of the opportunity to appeal either decision.
That argument, however, stands on a faulty premise; it was NMFS’s own action that
mooted the matter. More specifically, each of the claims in the original Complaint, which
challenged the 2014 BiOp and the regulatory regime predating the 2021 Final Rule, were mooted
long before MELA or the CAA by NMFS’s voluntary decision to issue a new BiOp and Plan
amendment in 2021. See Friends of Animals v. Bernhardt, 961 F.3d 1197, 1203 (D.C. Cir. 2020)
(“[W]e have recognized that the government’s abandonment of a challenged regulation is just the
sort of development that can moot an issue.”); see also Fed. Def. Mot. at 19 (acknowledging that
2014 BiOp “was rendered obsolete by the 2021 BiOp”); CBD III, 480 F. Supp. 3d at 243.
Hardly a victim of happenstance, NMFS may be disentitled to vacatur for that reason alone. See
Ctr. for Sci. in the Pub. Int. v. Regan, 727 F.2d 1161, 1165–66 (D.C. Cir. 1984) (denying vacatur
where Treasury Department “cause[d] the dismissal of its own appeal” by issuing new rule); but
see Nat’l Black Police Ass’n, 108 F.3d at 353 (noting that the “Bancorp presumption against
vacatur might apply” when executive branch repeals a regulation but declining to decide the
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issue) (emphasis added); Humane Soc. of U.S. v. Kempthorne, 527 F.3d 181, 187 (D.C. Cir.
2008) (identifying tension in Circuit cases on this point and similarly leaving for another day).
The same, however, may not be said of the lobstermen, as they are not responsible for
issuing the 2021 BiOp and Final Rule — both of which they challenged in MELA. See Humane
Soc., 527 F.3d at 187–88 & n.11 (D.C. Cir. 2008) (doubt as to whether federal appellants’
voluntary act disentitles them to vacatur “is removed” by intervenor’s separate request because
“[p]lainly, [intervenor] did not moot the appeal”). Whether vacatur is warranted thus depends on
the other factors. See Jewish War Veterans of the U.S. of Am., Inc. v. Mattis, 266 F. Supp. 3d
248, 252 n.4 (D.D.C. 2017) (“[A]lthough under U.S. Bancorp a party’s voluntary action in
causing mootness is one reason why a Court should deny vacatur, it is not the only reason.”).
As to both NMFS and the lobstermen, the other factors strongly counsel against vacating
the 2018–20 Opinions and Orders. First, neither party diligently sought appellate review of those
decisions. See Mahoney, 113 F.3d at 221–22. While it is true that the Court denied NMFS’s
motion for the entry of final judgment, see Minute Order of Aug. 9, 2021, which would have
terminated the case, the agency’s ability to appeal the 2020 summary-judgment Order leading to
remand did not depend upon it. See NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1436 (D.C. Cir.
1996) (“[W]hile ‘a private party may not, in most cases, immediately appeal a district court order
remanding a case for further agency proceedings, the agency may do so.’”) (quoting Occidental
Petroleum Corp. v. SEC, 873 F.2d 325, 331 (D.C. Cir. 1989)). NMFS, in any event, did not
intimate any desire to appeal the Court’s prior Orders in its briefing nor make any mention of
such step at the August 5, 2021, hearing on such motion, which could have provided cause to
grant it or at least enter a Federal Rule of Civil Procedure 54(b) certification. See generally ECF
Nos. 136 (Mot. for Entry of Judgment) (no mention of appeal; seeking only to ensure any further
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litigation “occur[s] in the context of a new lawsuit”); 148 (Fed. Def. Entry of Judgment Reply) at
10–20 (same). The lobstermen, for their part, did not file a motion for entry of final judgment to
begin with. Rather, they urged the Court to grant the agency’s motion. See generally ECF No.
150 (Lobstermen Entry of Judgment Response). And, in doing so, they did not express any
desire of their own for appellate review. Id.
The preclusive effect of those decisions, furthermore, is relatively insignificant. While it
is certainly conceivable that the conservation groups could sue NMFS again under the ESA and
request discovery, the Court’s discovery ruling was specific to the circumstances of the case and
would not necessarily entitle them to the same relief in a subsequent action. See CBD I, 349 F.
Supp. 3d at 42–43 (concluding that discovery is neither always appropriate nor always precluded
in ESA citizen-suit cases and permitting discovery based on the “specific claims” at issue). The
summary-judgment ruling, meanwhile, will have no claim-preclusive effect at all because it
addressed a challenge to the 2014 BiOp, which is no longer in force. As Plaintiffs note, any
subsequent challenge to the 2028 biological opinion will constitute a different claim. See Pl.
Opp. at 38; Brodie v. Burwell, 2016 WL 3248197, at *6 (D.D.C. June 13, 2016) (noting res
judicata requirement that “the present claim is the same as the claim which was raised or which
might have been raised in the prior proceeding”) (emphasis and citation omitted). Both
decisions, moreover, while not precedential in a binding sense, are of persuasive value to the
legal community as a whole. See Bancorp, 513 U.S. at 26–27.
Finally, the parties never address the realities on the ground. Aside from NMFS’s vague
suggestion that the 2020 summary-judgment Opinion and Order “will limit the options available
to [it] despite the agency’s need for flexibility,” the briefs are devoid of detail as to how the
discovery or summary-judgment decisions prejudice them going forward. See Fed. Def. MTD at
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18. Without more, they have not shown that they are entitled to the “extraordinary remedy” they
seek. Bancorp, 513 U.S. at 26.
2022 Opinions & Orders
The 2022 Opinions and Orders, however, are a different story. Once again, vacatur is
normally appropriate when a case becomes moot by “happenstance,” Munsingwear, 340 U.S. at
40, unless the party seeking that relief caused the mootness through its voluntary act. Bancorp,
513 U.S. at 24. The acts that mooted the claims addressed in these Opinions and Orders were the
enactment of the CAA and the vacatur of the 2021 BiOp. Neither constitutes a voluntary act
attributable to NMFS or the lobstermen.
Start with the enactment of the CAA. The D.C. Circuit recently noted that “[w]hen a
legislative act moots a case,” like the CAA here, the “established practice” is “to vacate the
district court’s decision” — i.e., to treat the new legislation as happenstance, not as a voluntary
act. Friends of the Earth v. Haaland, 2023 WL 3144203, at *2 (D.C. Cir. Apr. 28, 2023); see also
Am. Bar Ass’n, 636 F.3d at 644. True, the CAA’s language was drafted in consultation with
Defendants Gina Raimondo (Secretary of Commerce) and Janet Coit (Assistant Administrator
for National Oceanic and Atmospheric Administration Fisheries), as well as Janet Mills
(Governor of Maine) and Meredith Mendelson (Deputy Commissioner of the Maine Department
of Marine Resources), all of whom reviewed or edited draft versions of the legislation. See ECF
Nos. 257-2 (Mendelson-Coit Email on Draft Legislation); 257-3 (Mendelson-Coit Email
Thread); 257-4 (Mills-Raimondo Email Thread). Notwithstanding NMFS’s and DefendantIntervenors’ role in shaping the language, the law is still ultimately a product of bicameralism
and presentment, which vests its authorship in Congress and the President. Plaintiffs do not
suggest otherwise. See Pl. Opp. at 32–41.
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To be sure, the Circuit in Nat’l Black Police Ass’n, explained that new legislation may
potentially constitute a “voluntary action” activating Bancorp’s presumption against vacatur if
there is some “evidence indicating that the legislation was enacted in order to overturn an
unfavorable precedent.” 108 F.3d at 351. As noted earlier, the Court’s 2022 Opinions and
Orders were indeed a direct cause of the at-issue provision of the CAA. Congressional action
designed to reverse the outcome of a judicial decision, however, is not the same as action
intended to void an opinion itself; here, Congress seems to have legislated anew because existing
law had policy consequences it would not abide, as is its prerogative. See id. at 352
(contemplating possibility that legislature may pass new legislation that moots a case “because
the lawsuit has convinced it that the existing law is flawed”). The Court thus concludes that the
“presumption of integrity that [normally] attaches to legislative action” applies here. Id. at 354.
As to the vacatur of the 2021 BiOp, the Court need not spill much ink. That was the
result of court action, not Defendants’ voluntary acts. See MELA, 70 F.4th at 602; Maine
Lobstermen’s Ass’n, No. 21-2509 (D.D.C.), Minute Order of Oct. 30, 2023.
Turning to the other vacatur factors, the preclusive effect of the foregoing rulings is
arguably no greater than the preclusive effect of the 2018–20 Opinions and Orders discussed
earlier since the 2021 BiOp has also been vacated and claims against the 2028 Final Rule will
constitute different claims from those raised in this case. So, too, those rulings have inherent
value to the legal community as persuasive precedent. On the other hand, Defendants and
Defendant-Intervenors have not slept on their rights here: the mootness of Plaintiffs’ outstanding
claims would preclude appellate review on the merits. Vacatur could still serve the public
interest insofar as it avoids conflict with the six-year regulatory project Congress has set forth in
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the CAA. See Clarke, 915 F.2d at 708 (“Vacatur appears particularly appropriate where retention
of the precedent creates a gratuitous conflict with a co-equal branch of government.”).
As things stand, NMFS will no longer proceed with the multi-phase Conservation
Framework of which the 2021 Final Rule was a part but will instead pursue “a program of
developing new technology, submitting annual reports [to Congress], and ultimately producing a
new rule to take effect by December 31, 2028,” as mandated by the CAA. See Fed. Def. MTD at
7; ECF No. 255-2 (Michael Pentony Decl.), ¶ 6. This supplants the December 2024 deadline and
status-report schedule contained in the 2022 remedy Order. See CBD V, 2022 WL 17039193, at
*3. And, as noted earlier, the provision deems the Final Rule “sufficient” under the ESA and
MMPA for now, which displaces the Court’s contrary conclusions in its 2022 Opinion on
summary judgment. The relief to which Plaintiffs are entitled (if any) should thus be revisited in
light of the agency’s forthcoming rule and whatever “new scientific and technological
developments” exist at that time. See Fed. Def. MTD at 16.
The Court is, accordingly, inclined to follow the “established practice” and vacate its
2022 Opinions and Orders. Munsingwear, 340 U.S. at 39.
III.
Conclusion
The Court will grant the Motions to Dismiss but vacate only its 2022 summary-judgment
Opinion and Order (ECF Nos. 218 & 219) and its 2022 remedy Order (ECF No. 239). An Order
so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: January 29, 2024
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