wilbur ross, et al. federal defendants...united states district court for the district of columbia...

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL ) DIVERSITY, et al., ) )

Plaintiffs, ) Civil Action Nos. 18-112 (JEB) ) 18-283 (JEB) v. ) ) WILBUR ROSS, et al., ) )

Federal Defendants, and ) ) MAINE LOBSTERMEN’S ) ASSOCIATION, INC., and ) MASSACHUSETTS LOBSTERMEN’S ) ASSOCIATION, ) ) Defendant-Intervenors. ) ____________________________________)

PLAINTIFFS’ OPPOSITION

TO FEDERAL DEFENDANTS’ MOTION FOR A STAY

Case 1:18-cv-00112-JEB Document 71 Filed 09/03/19 of 30

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TABLE OF CONTENTS

Exhibit List.............................................................................................................................ii Table of Acronyms ................................................................................................................iii INTRODUCTION .................................................................................................................1 BACKGROUND ...................................................................................................................3 I. The ESA, the MMPA, and the Advisory Role of the Take Reduction Team……….3 II. NMFS’s History of Failing to Implement Timely and Lawful ALWTRP Amendments ..............................................................................................................6 III. The History of This Instant Litigation Is One of Repeated Delays ...........................10 STANDARD OF REVIEW ...................................................................................................11 ARGUMENT .........................................................................................................................12

I. A Stay Will Prejudice Plaintiffs’ Interests Because There Are No Measures in Place to Ensure that Unlawful Right Whale Entanglements Will Stop .....13 B. A Decision on the Merits of Plaintiffs’ Claims Will Serve Judicial Economy and Require NMFS to Act Lawfully in its Rulemaking ................17 C. NMFS Has Not Demonstrated Clear Hardship or Inequity ...........................22

CONCLUSION ......................................................................................................................24


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EXHIBIT LIST

Exhibit 1: Statement of Chris Oliver, the Assistant Administrator for NOAA Fisheries, Immediate Action Needed to Save North Atlantic Right Whales, July 3, 2019 (“Oliver Statement”)

Exhibit 2: Excerpts from National Marine Fisheries Service, Endangered Species Act

Section 7 Consultation on the Continued Implementation of Management Measures for the American Lobster Fishery [Consultation No. NER-2014-11076], July 31, 2014 (“2014 BiOp”)


Section 7 Consultation on the Continued Implementation of Management Measures for the American Lobster Fishery [Consultation No. F/NER-2003-00956], October 29, 2010 (“2010 BiOp”)


Section 7 Consultation on the Continued Implementation of Management Measures for the American Lobster Fishery [Consultation No. F/NER/2012/01456], August 3, 2012 (“2012 BiOp”)

Exhibit 5: National Marine Fisheries Service, Memorandum re: Reinitiating Consultation on

the Batched Fisheries, American Lobster, and Atlantic Deep-Sea Crab Biological Opinions and associated Fishery Management Plans, October 17, 2017 (“Reinitiation Memo”)

Exhibit 6: Email from the National Marine Fisheries Service to the Atlantic Large Whale Take Reduction Team, April 5, 2019 (“NMFS Apr. 2019 Email”)

Exhibit 7: Excerpts from National Marine Fisheries Service, NORTH ATLANTIC RIGHT WHALE (Eubalaena glacialis): Western Atlantic Stock, February 2019 (“2018 Stock Asessment”)

Exhibit 8: Excerpts from National Marine Fisheries Service, August 2019 Scoping Meetings

Developing Modifications to the Atlantic Large Whale Take Reduction Plan Maine, August 2019 (“NMFS Presentation”)

Exhibit 9: National Marine Fisheries Service, 2017-2019 North Atlantic Right Whale

Unusual Mortality Event, updated August 29, 2019 (“NMFS UME Webpage”)

Exhibit 10: National Marine Fisheries Service, Email to the Atlantic Large Whale Take Reduction Team, August 31, 2019 (“NMFS Aug. 2019 Email”)


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TABLE OF ACRONYMS ALWTRP: Atlantic Large Whale Take Reduction Plan ALWTRT: Atlantic Large Whale Take Reduction Team APA: Administrative Protection Act BiOp: Biological Opinion ESA: Endangered Species Act MMPA: Marine Mammal Protection Act NMFS: National Marine Fisheries Service PBR: Potential biological removal (level) TRP: Take Reduction Plan TRT: Take Reduction Team


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Plaintiffs Center for Biological Diversity, Defenders of Wildlife, the Humane Society of

the United States, and Conservation Law Foundation (“Plaintiffs”) submit this Opposition to the

Motion for a Stay, ECF No. 68, by Defendants Secretary of Commerce, Assistant Administrator

of NOAA Fisheries, and National Marine Fisheries Service (collectively, “NMFS”).

INTRODUCTION

In these consolidated cases, Plaintiffs challenge NMFS’s failure to comply with the

Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–1544, the Marine Mammal Protection Act

(“MMPA”), 16 U.S.C. §§ 1361–1389, and the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701–706, in authorizing and managing the American lobster fishery given the fishery’s

ongoing, harmful impacts to North Atlantic right whales—a critically endangered species

struggling to survive.

Fully one and a half years after Plaintiffs filed this litigation, NMFS now makes the

extraordinary claim that it is entitled to a stay, asserting that Plaintiffs’ claims may be moot by

mid-2020—a full ten months from now—and because of the alleged hardship of having to

respond to Plaintiffs’ merits brief while conducting a new MMPA rulemaking and ESA

consultation. NMFS is wrong and has failed to satisfy its heavy burden as to why the Court

should stay this case. Contrary to NMFS’s assertions, a stay will prejudice Plaintiffs’ interests; a

decision on the merits, not a stay, will best serve judicial economy; and NMFS has not

demonstrated clear hardship or inequity in being required to proceed with merits briefing.

First, a stay of this case will harm Plaintiffs’ interests and the endangered species they

seek to protect. Despite NMFS’s repeated recognition that it must do more to protect right

whales from fishing gear entanglements, it has corrected none of the wrongs Plaintiffs seek to

remedy through this litigation. Nothing has changed on the water except that more right whales


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have died. Since Plaintiffs filed this case in January 2018, an astonishing 11 whales are known to

have been killed, including three whales killed by entanglements in U.S. waters last year,

followed by eight found dead just this summer. That makes 28 known dead whales since 2017.

There are now only about 400 surviving right whales, fewer than 95 of which are reproductive

females. The whale deaths this summer prompted NMFS itself to state that “protecting every

individual is a top priority” and “[r]ight whales cannot withstand continued loss of mature

females—we have reached a critical point.” Ex. 1: Oliver Statement. Yet NMFS has not

committed to any measures to prevent right whale entanglements during the pendency of its

proposed stay, let alone until any regulatory changes NMFS might eventually enact become

effective on the water.

Second, a decision on the merits would promote judicial economy. NMFS has a long

history of delaying regulatory action to protect right whales (often only acting when forced to do

so through litigation), of weakening conservation measures in proposed rules before

promulgating final rules at the request of industry, and of violating the ESA and MMPA in the

very same ways that Plaintiffs allege here. A ruling on the merits of Plaintiffs’ claims will

provide clear direction to NMFS as it proceeds with its rulemaking and consultation processes

and decrease the likelihood that Plaintiffs are back before this Court again to challenge the same

legal flaws at issue in this case.

Finally, defending this lawsuit does not constitute a clear case of hardship or inequity,

particularly where, by its own admission, NMFS began the rulemaking process in October 2017,

when it reinitiated consultation on the 2014 Biological Opinion (“BiOp”) on the lobster fishery.

Decl. of Jennifer Anderson ¶ 5, ECF. No. 68-2 (“Anderson Decl.”). Yet NMFS proffers no

explanation as to why it did not file its Motion for a Stay in January 2018, when Plaintiffs filed


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these now-consolidated cases. At every step of this litigation, NMFS could have made the same

hardship allegations it now advances. Instead, NMFS chose to wait until after months spent on

the record and discovery production processes, including motions practice, and through multiple

requests for enlargement of time on NMFS’s part, and until the eve of its deadline for its

opposition to Plaintiffs’ motion for summary judgment to seek a stay. Such approach is yet

another tactic in NMFS’s campaign to evade review of its unlawful actions that are threatening

the survival and recovery of the right whale.

The Court should therefore deny NMFS’s Motion for a Stay and order summary

judgment briefing to proceed expeditiously and without further delay.

BACKGROUND

I. The ESA, the MMPA, and the Advisory Role of the Take Reduction Team

As Plaintiffs detail in their summary judgment brief, the ESA and the MMPA both

establish specific standards and procedures to protect endangered marine mammals, like right

whales. ECF No. 66-1 (Pls.’ Mem. of Points and Authorities in Supp. of Mot. For Summ. J.) at

6–12. Both the ESA and MMPA prohibit the unauthorized entanglement of right whales in

lobster gear and establish processes by which NMFS can authorize take otherwise prohibited by

either statute, provided certain standards are met. Id. at 5–13. However, because the MMPA take

reduction plan (“TRP”) process itself is not at issue in Plaintiffs’ case, Plaintiffs provide this

additional statutory background to provide necessary context for evaluating NMFS’s assertions

in its Motion for Stay.

Specifically, section 118 of the MMPA requires NMFS to develop a TRP for each

“strategic stock” of marine mammals, including ESA-listed species, that interacts with a

commercial fishery causing “frequent” or “occasional” mortality or serious injury of the stock.


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16 U.S.C. §§ 1387(f)(1), 1362(19)(C). The MMPA specifies that a TRP must reduce, “within 6

months of its implementation, the incidental mortality and serious injury of marine mammals” to

below the potential biological removal level (“PBR”). Id. § 1387(f)(2); 50 C.F.R. § 216.3

(NMFS’s MMPA regulations defining “serious injury” as “any injury that will likely result in

mortality.”). PBR is the maximum number of animals that may be removed from a marine

mammal stock while allowing that stock to reach its optimum sustainable population. Id. §

1362(20). Each owner of a fishing vessel who engages in a fishery that NMFS identifies as

causing “frequent” or “occasional” mortality or serious injury of marine mammals must seek

NMFS’s authorization to be exempt from the take prohibition and must comply with the TRP. Id.

§ 1387(c)(3)(A)(i), (iv).

Although NMFS briefly summarizes this MMPA take reduction planning process, ECF

No. 68-1 (Memorandum in Support of Motion for a Stay) at 2–3, 6, it omits two highly pertinent

aspects. The first is the solely advisory nature of a take reduction team (“TRT). For strategic

stocks such as the right whale, the MMPA directs NMFS to establish such a team to recommend

measures that the agency could implement via a TRP to meet the statute’s mandate to reduce

serious injuries and mortalities. 16 U.S.C. § 1387(f)(6). The TRT consists of scientists,

conservationists, state and federal regulators, fishermen, and other representatives as NMFS

deems appropriate. Id. § 1387(f)(6)(C).

The TRT is initially charged with developing a draft take reduction plan by consensus; if

consensus cannot be reached, the TRT must advise NMFS on the options the Team considered,

including both majority and minority views. Id. § 1387(f)(7). In developing a final TRP, NMFS

must take the draft plan developed by the TRT “into consideration,” but is not required to

implement the recommendations in the final rule. Id. § 1387(f)(7)(B)(i). If the TRT fails to


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submit a draft plan, NMFS must publish its own proposed plan and implementing regulations. Id.

§ 1387(f)(7)(B)(ii). Thereafter, NMFS and the TRT must meet at intervals to monitor the

implementation of the final plan until NMFS determines that the plan’s objectives have been

met. Id. § 1387(f)(7)(E).

The second highly pertinent aspect of the take reduction plan process is that it is NMFS’s

ultimate duty under the MMPA to develop and implement a TRP that will meet the statute’s

strict mandates to reduce serious injuries and mortalities to at or below PBR. See 16 U.S.C. §

1387(f)(7)(A), (B), (C), (F). The MMPA requires NMFS subsequently to amend the TRP as

necessary to ensure this objective is met. Id. § 1387(f)(7)(F). Additionally, the MMPA explicitly

requires that the agency “prescribe emergency regulations” to reduce incidental mortality and

serious injury in a fishery when necessary to protect a species or stock. Id. § 1387(g)(1)(A).

Thus, as the MMPA makes plain, the TRT is solely an advisory body tasked with providing

recommendations to NMFS on how best to meet the MMPA’s mandate of reducing serious

injury and mortality to at or below PBR. See id. § 1387(f)(2).

Here, in supporting its stay request, NMFS places great emphasis on the need for a stay to

avoid upsetting the “delicate balance that NMFS and the ALWTRT struck in April 2019.” ECF

No. 68-1 at 10. NMFS ignores entirely the ALWTRT’s statutory role as a purely advisory body.

It also fails to discuss that, independent of the April 2019 recommendations, NMFS is now

obligated to do more than consider those recommendations in developing proposed and final

amendments to the ALWTRP. Rather than blindly implement the April 2019 recommendations,

NMFS’s statutory duty is to proceed with rulemaking to implement whatever measures are

necessary bring the plan into compliance with the MMPA. NMFS must also comply with the

ESA, which requires the agency to consider all the direct and indirect effects of the lobster


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fishery, such as the sublethal effects of entanglements that can reduce reproduction, not just

those that cause or are likely to cause death. See 16 U.S.C. 1536(a)(2); 50 C.F.R. § 402.02; see

also 50 C.F.R. § 216.3 (NMFS’s MMPA regulations defining “serious injury” as “any injury that

will likely result in mortality.”). Therefore, contrary to NMFS’s repeated assertions, there is no

“balance of the equities struck by NMFS and the TRT,” ECF No. 68-1 at 2, there are no

“decisions” of the TRT, id. at 11, and there is no “framework agreement achieved by the TRT

and NMFS.” Id. at 14. The April 2019 recommendations are only that—recommendations that

the agency must consider in moving forward with the rulemaking.

II. NMFS’s History of Failing to Implement Timely and Lawful ALWTRP Amendments

Following the April 2019 meeting of the Atlantic Large Whale Take Reduction Team

(“ALWTRT”), in August 2019, the agency issued a notice stating that NMFS “intends to begin a

rulemaking process that will amend the Atlantic Whale Take Reduction Plan [“ALWTRP”] . . .

to reduce the risk of serious injuries and mortalities of North Atlantic right whales” in

commercial fishing gear. 84 Fed. Reg. 37,822 (Aug. 2, 2019) (emphasis added). The notice also

states the agency intends to prepare an environmental impact statement under the National

Environmental Policy Act after a series of public meetings. Id.

NMFS relies heavily on this scoping notice to justify its request for a stay. See, e.g., ECF

No. 68-1 at 2, 7, 8, 9. Notably, the notice does not state when NMFS intends to issue a proposed

rule, a draft environmental impact statement, or a final rule. See 84 Fed. Reg. at 37,822–23.

Instead, the declaration submitted by NMFS along with its Motion states that the agency intends

to issue a draft environmental impact statement and proposed rule “by the end of January or

February 2020” and although noting the possibility of additional delays, has an “ultimate goal of

a final rule in July 2020.” Anderson Decl. ¶ 16. NMFS does not (and cannot) guarantee that these


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proposed and final documents will be issued by these anticipated dates. Nor can NMFS

guarantee what the substance of its actions will be, especially in light of its responsibilities under

the National Environmental Policy Act to analyze fully the impacts of its preferred and

alternative actions, its responsibilities under the ESA to ensure that the final rule and continued

operation of the lobster fishery do not jeopardize the right whale, and, of course, its

responsibilities under the APA to consider public comments.

Moreover, the promises NMFS makes in its Motion for a Stay and supporting documents

regarding proposed and final rules are highly suspect, particularly given the agency’s history of

delay and its failure to amend the ALWTRP unless forced to do so by litigation. NMFS’s

assertions that the new final rule and new biological opinion will fully moot Plaintiffs’ claims

and remedy Plaintiffs’ injuries are equally doubtful given its long history of promulgating final

ALWTRP rules that are weaker than those proposed, in issuing biological opinions that violate

the ESA, and authorizing the lobster fishery without the take permits required by the ESA and

MMPA. Simply put, given its own slow history and repeated legal violations in issuing the

ALWTRP, there is no basis for confidence in NMFS’s promises.

NMFS first convened the ALWTRT in 1996 to reduce right whale deaths and serious

injuries in the lobster and other Atlantic fisheries. See e.g., 62 Fed. Reg. 16,519, 16,520 (Apr. 7,

1997). NMFS then proposed the original ALWTRP as an interim rule in 1997, 62 Fed. Reg.

39,157 (July 22, 1997), and issued a final plan in 1999. 64 Fed. Reg. 7529 (Feb. 16, 1999).

Since then, despite ongoing entanglements and the clear need to amend the ALWTRP to

comply with the MMPA’s mandates, the agency has repeatedly delayed necessary amendments.

For example, in 2003, following the entanglement-related death of a right whale in gear

consistent with that used in the lobster fishery, NMFS concluded that existing measures were not


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sufficiently protective of right whales. See, e.g., 70 Fed. Reg. 35,894, 35,896 (June 21, 2005);

Ex. 2: 2014 BiOp at 6. Yet NMFS did not issue a proposed rule to amend the ALWTRP until

June 2005, 70 Fed. Reg. at 35,894, and did not finalize the rule until October 2007—nearly two

and a half years after the proposed rule, five years after NMFS acknowledged the ALWTRP

should be amended, and well beyond the mandatory timelines established by the MMPA. 72 Fed.

Reg. 57,104 (Oct. 5, 2007); 16 U.S.C. § 1387(f)(7)(C) (requiring NMFS to publish final TRP

rule within 60 days of close of comment period on proposed rule).

Critically, NMFS only issued the final rule because Plaintiff the Humane Society of the

United States challenged the agency’s unlawful delay and it was under a court order to act. See

Humane Society of the U.S. v. Gutierrez, No. 07-00333-ESH, ECF No. 1, Complaint for

Declaratory and Injunctive Relief (D.D.C., filed Feb. 12, 2007); id. ECF No. 23, Order and

Stipulated Settlement and Agreement (stipulated settlement requiring issuance of final rule

amending ALWTRP by date certain). Even then, a month before the rule was to become

effective, NMFS subsequently delayed the effective date of the final rule to give trap/pot

fishermen until April 5, 2009 to comply with gear modifications, 73 Fed. Reg. 51,228 (Sept. 2,

2008), forcing a subset of the current Plaintiffs back to court. See Humane Society of the U.S. v.

Gutierrez, No. 08-01593-ESH, ECF No. 1, Complaint for Declaratory and Injunctive Relief

(D.D.C., filed Sept. 15, 2008). NMFS has also delayed issuing legally required biological

opinions under the ESA. For example, despite reinitiating consultation on the lobster fishery in

July 2003, NMFS did not issue a biological opinion until October 2010—more than seven years

later. Ex. 2: 2014 BiOp at 6.

In addition to its consistent delays in amending the ALWTRP, NMFS has a long history

of weakening requirements between the proposed and final rule stage, often to accommodate


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industry’s claims that the proposed regulations would be too burdensome. See, e.g., 62 Fed. Reg.

39,157, 39,165–66 (July 22, 1997) (final ALWTRP rule describing changes from proposed rule,

including eliminating proposed restrictions for lobster gear set in right whale critical habitat and

eliminating proposed comprehensive gear marking requirements); 72 Fed. Reg. 57,104, 57,164–

67 (Oct. 5, 2007) (final rule amending ALWTRP describing changes from proposed rule,

including giving fishermen twelve months to comply with gear modifications, enlarging the

boundaries of exemption areas, and eliminating proposed gear modification that would require

more traps per trawl to reduce the amount of vertical line in the water); 79 Fed. Reg. 36,586,

36,605 (June 27, 2014) (final rule amending ALWTRP describing changes from proposed rule,

including eliminating two of three proposed seasonal closures).

Moreover, NMFS’s biological opinions have repeatedly exhibited the same legal

inadequacies Plaintiffs challenge here. For example, as with the 2014 BiOp at issue, NMFS’s

jeopardy analyses in its 2010 and 2012 biological opinions only evaluated the impacts of

entanglements that lead to mortality or serious injury, a term of art under the MMPA defined as

an injury that will likely lead to mortality. See 50 C.F.R. § 216.3. All three jeopardy analyses did

not analyze the known sublethal impacts of entanglements, such as diminishing reproduction.

See, e.g., Ex 3: 2010 BiOp at 119; Ex. 4: 2012 BiOp at 141; Ex. 2: 2014 BiOp at 149; cf. ECF

No. 66-1 at 20–24 (Plaintiffs’ summary judgment brief arguing this approach violates the ESA).

Moreover, despite acknowledging that the lobster fishery could entangle, seriously injure, or kill

right whales, NMFS’s 2010, 2012, and 2014 biological opinions all failed to include the required

incidental take statement permitting the take of right whales by the fishery. Ex 3: 2010 BiOp at

134; Ex. 4: 2012 BiOp at 153; Ex. 2: 2014 BiOp at 161; cf. ECF No. 66-1 at 25–29 (Plaintiffs’

summary judgment brief arguing this failure violates the ESA). Indeed, NMFS has never


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authorized the incidental take of right whales by the lobster fishery under the ESA or MMPA,

meaning the fishery has been operating unlawfully since the inception of these statutes.

III. The History of this Litigation Is One of Repeated Delays

In 2014, subsequent to its latest amendments to the ALWTRP, NMFS issued a biological

opinion purporting to analyze the effects of the fishery on right whales, concluding the fishery

could kill or seriously injure an average of 3.25 right whales every year for five years before it

would reinitiate consultation. Ex. 2: 2014 BiOp at 135–36. Following Plaintiffs’ notice of intent

to sue in this case, NMFS reinitiated consultation on the lobster fishery in October 2017. Ex. 5:

Reinitiation Memo at 1. The agency stated that it was reinitiating consultation in light of new

information that the right whale is in decline and because the level of right whale serious injury

and mortality was likely to exceed the BiOp’s “reinitiation trigger.” Id. at 1–2. Yet NMFS

continued to authorize the fishery, relying on the existing biological opinion and without

implementing a single additional measure to prevent or mitigate the significant harm to right

whales from entanglement. These actions violate federal law.

Accordingly, Plaintiffs filed the first of the two cases currently consolidated before this

Court in January 2018, alleging violations of the ESA, MMPA, and APA. Throughout this

case—starting with the agency’s request that the Court allow it six months to file the

administrative record, ECF No. 23 at 14, and now with its request to stay this case for nearly a

year on the eve of the deadline for its summary judgment brief—NMFS has repeatedly sought

extensions of various Court-ordered deadlines in an apparent attempt to evade judicial review of

its legal errors in managing the lobster fishery. See id.; ECF No. 51 (NMFS’s request to extend

the original deadline to complete written discovery); ECF No. 54 (NMFS’s second request to

extend discovery deadlines); ECF No. 67 (NMFS’s request to extend time to file remaining


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summary judgment briefs); ECF No. 68 (NMFS’s Motion for a Stay).1 NMFS’s eleventh-hour

request for a stay fits all too neatly into what has become, with the benefit of hindsight, a clear

and calculated strategy of delay. Any additional delay in resolving the merits of Plaintiffs’ claims

will only further delay the protections to which right whales are legally entitled and so

desperately need.

STANDARD OF REVIEW

NMFS has a heavy burden to demonstrate why the Court should grant its requested stay.

In ruling on a motion to stay, a court must exercise its judgment by “weigh[ing] competing

interests and maintain[ing] an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254–55

(1936). “When considering whether to stay its proceedings, the D.C. Circuit instructs that a court

must ascertain ‘the true value that would follow prior completion of the related agency

proceedings.’” American Postal Workers v. U.S. Postal Serv., 422 F. Supp. 2d 240, 248–49

(D.D.C. 2006) (quoting Rohr Industries v. Washington Metro. Area Transit Auth., 720 F.2d

1319, 1325 (D.C. Cir. 1983)).

The movant “bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681,

708 (1997) (citations omitted). Where “there is even a fair possibility” that the stay may cause

harm to the other party, the movant “must make out a clear case of hardship or inequity in being

required to go forward.” Landis, 299 U.S. at 255; see also GFL Advantage Fund, Ltd. v. Colkitt,

216 F.R.D. 189, 193 (D.D.C. 2003) (“the right to proceed in court should not be denied except

under the most extreme circumstances”) (citation omitted); Coastal (Bermuda) Ltd. v. E.W.

Saybolt & Co., 761 F.2d 198, 203 n.6 (5th Cir. 1985) (“Where a discretionary stay is proposed,

1 None of these extension requests were because of the government shutdown. NMFS filed a motion to stay this case on January 8, 2019 commensurate with the length of the shutdown, ECF 52, and Plaintiffs did not oppose that motion. Id.


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something close to genuine necessity should be the mother of its invocation.”).

Here, there is more than a “fair possibility” that Plaintiffs—who have protected interests

in preserving the critically endangered right whale that has been harmed by NMFS’s legal

violations—will be further harmed if a stay is granted. Accordingly, the burden is on NMFS to

demonstrate a “clear case of hardship or inequity” if the stay is denied. Landis, 299 U.S. at 255.

NMFS has failed to do so.

ARGUMENT

NMFS Fails to Meet its Burden to Show the Court Should Grant a Stay

NMFS first argues for a stay because, it asserts, it intends to issue a rule amending the

ALWTRP and a new biological opinion on the lobster fishery by July 31, 2020. It argues that a

stay will allow the agency to avoid hardship and inequity by enabling it to avoid diverting

resources to the litigation; avoid having to take litigation positions that might upset the “delicate

balance” between NMFS and the TRT; and avoid Plaintiffs being allowed to “circumvent,

undermine, or negate the decisions of the TRT” by proceeding with this case. ECF No. 68-1 at

10–11. It next argues that a stay would serve the parties’ interests and the Court’s resources by

allowing NMFS to avoid litigating Plaintiffs’ current claims in the hopes that those claims will

be mooted by future agency action. ECF No. 68-1 at 11–12. Finally, NMFS argues that staying

this case—that has already been pending for a year and a half—for nearly a year more will not

prejudice Plaintiffs. ECF No. 68-1 at 12–13.

NMFS’s assertions fall far short of demonstrating the clear case of hardship or inequity

required to show why the Court should grant its request to stay this case. NMFS’s arguments fail

for three primary reasons. First, NMFS continues to authorize the lobster fishery with no plan in

place to guarantee that unlawful, harmful entanglements will cease, and thus Plaintiffs’ interests


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will be prejudiced in the event of the requested stay. Second, judicial economy will be best

served by a decision on the merits of Plaintiffs’ claims to ensure NMFS does not repeat the legal

errors of the 2014 BiOp at issue here. Third, defending this lawsuit, pursuant to an agreed-upon

schedule, while simultaneously proceeding with its statutory obligations under the MMPA and

ESA to undertake a rulemaking and the requisite environmental analyses, does not constitute a

clear case of hardship or inequity. The Court should therefore deny NMFS’s Motion.

I. A Stay Will Prejudice Plaintiffs’ Interests Because There Are No Measures in Place to Ensure that Unlawful Right Whale Entanglements Will Stop

Plaintiffs’ interests in conserving the ever-diminishing right whale population, and in

ensuring that right whales receive the full extent of the statutory protections to which they are

entitled, will be harmed in the event of a stay. NMFS’s contention that “the requested stay will

not prejudice Plaintiffs,” ECF 68-1 No. at 12, is incorrect. NMFS continues to authorize

operation of the lobster fishery and continues to rely on the existing unlawful biological opinion

in doing so. Because operation of the lobster fishery is ongoing, unlawful entanglements of right

whales will continue unless and until NMFS enacts regulatory measures sufficient to protect

these animals, those regulations become effective on the water, and any entanglements that could

occur are covered by lawful incidental take permits under the ESA and MMPA.

Congress spoke to Plaintiffs’—and the public’s—interests at stake in this case when it

enacted the ESA, which “mak[es] it abundantly clear that the balance has been struck in favor of

affording endangered species the highest of priorities.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,

194 (1978). Similarly, the MMPA’s “primary goal” is to “protect[] marine mammals;” under the

statute, “[t]he interest in maintaining healthy populations of marine mammals comes first.”

Kokechik Fishermen’s Ass’n v. Sec’y of Commerce, 839 F.2d 795, 800, 802 (D.C. Cir. 1988). As

the Supreme Court has made clear, “[a] district court cannot . . . override Congress’ policy


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choice, articulated in a statute, as to what behavior should be prohibited.” United States v.

Oakland Cannabis Buyers’ Coop., 532 U. S. 483, 497 (2001) (citing Tenn. Valley Auth., 437

U.S. at 153, 194). A stay in this case, allowing NMFS’s legal violations to continue unabated

while it proceeds with the MMPA rulemaking, would do just that.

To summarize the right whales’ perilous state: not only are they critically endangered, but

a scientific study published in 2017 revealed that the population has been in decline for nearly a

decade. See, e.g., 84 Fed. Reg. at 37,822; Ex. 6: NMFS Apr. 2019 Email. Scientists have

repeatedly confirmed that entanglement in fishing gear is the primary threat to the species’

existence, see Ex. 7: 2018 Stock Assessment at 19. NMFS has determined that the lobster fishery

causes frequent serious injury and mortality of right whales, see, e.g., 79 Fed. Reg. at 14,431; 84

Fed. Reg. at 22,067, and that current measures are not protective enough. Ex. 6: NMFS Apr.

2019 Email. The right whale’s status has become increasingly dire in the last three years, with

the loss of at least 28 individual animals, including 17 found dead in 2017 (12 in Canada and five

in the U.S.); three found dead in 2018 (all in the U.S.); and 8 found dead in 2019 (all in Canada).

Ex. 8: NMFS Presentation at 2–5; Ex. 9: NMFS UME Webpage at 2–4. Notably, of the eight

recorded right whale deaths in the U.S. in the last three years, five were from entanglements, and

only one has been assigned to Canadian gear. Ex. 9: NMFS UME Webpage at 2–4. And these

numbers do not include live entangled whales—or dead entangled whales whose corpses were

never discovered. And while this summer’s eight deaths occurred in Canadian waters, NMFS

recognized that the loss of these individuals makes immediate protections in U.S. waters all the

more urgent. See Ex. 1: Oliver Statement.

Yet NMFS requests a stay of this case, without any mitigation measures having been put

in place since 2014 to reduce the risk of entanglements or proposing any to be implemented


15

during the pendency of the requested nearly year-long stay, let alone until whatever rule NMFS

may ultimately enact is effective on the water. In other words, NMFS’s motion would allow it to

stay the litigation while the agency proceeds with the harmful and illegal activities at issue on the

illusory and unenforceable promise that NMFS will fully remedy Plaintiffs’ injuries in its future

actions and do so on a guaranteed timetable. Granting NMFS’s request would undermine the

ESA and MMPA and harm Plaintiffs’ interests in the conservation of critically endangered right

whales.

Other courts have denied stays in similar situations. For instance, in Animal Welfare

Institute v. Martin, the plaintiffs sued a state agency for authorizing trapping activities that

resulted in the illegal take of threatened Canada lynx in violation of section 9 of the ESA. 588 F.

Supp. 2d 70, 73 (D. Me. 2008). During the litigation, the state submitted an incidental take

permit application to the federal government and moved to stay the case pending resolution of its

permit application, while continuing to authorize the trapping activities at issue. Id. at 96–97.

The court denied the state’s request, noting that if ESA-protected species “are subject to

impermissible takes, to stay the case would sanction an ongoing violation of the ESA” and

undermine congressional intent “that ‘endangered species . . . be afforded the highest of

priorities.’” Id. at 97 (citing Tenn. Valley Auth., 437 U.S. at 174).

California Trout v. United States Bureau of Reclamation is also instructive. 115 F. Supp.

3d 1102 (C.D. Cal. 2015). In that case, the plaintiffs sued the Bureau of Reclamation for

violating section 7(a)(2) and section 9 of the ESA by operating a water project in a manner that

caused unpermitted take of endangered steelhead. Id. at 1106–07. The federal defendants moved

to stay the litigation upon reinitiating section 7 consultation with NMFS because the consultation

would result in a new biological opinion and incidental take statement permitting take of


16

steelhead. Id. at 1116–17. The court denied the motion, finding “a possibility that a stay could

damage [the] plaintiff’s interests” because the water project was ongoing, there had been five

reported takes of steelhead since the plaintiffs filed their complaint, and the defendants “[could]

not foreclose the possibility of future harm to steelhead” from the project. Id. at 1114–15, 1117;

see also Conserv. Council for Haw. v. Nat’l Marine Fisheries Serv., 97 F. Supp. 3d 1210, 1231–

32 (D. Haw. 2015) (denying NMFS’s request to stay a challenge to a biological opinion where

the agency planned to issue a new biological opinion within a few months, noting that “[i]t

makes no sense” to stay the case if the defendants can continue to rely on the existing opinion

because doing so “would be advantageous to [the] Defendants while treating [the plaintiffs] as if

they had never brought an ESA challenge at all”).

The same concerns exist here. In January 2018, Plaintiffs brought this case challenging

the legal violations of the 2014 BiOp, upon which NMFS had already reinitiated consultation, to

ensure that NMFS would have the benefit of a court order instructing it not to repeat the same

violations yet again. Plaintiffs also sought to establish their entitlement for a court order to enjoin

NMFS’s causation of unlawful entanglements that are killing, injuring, harassing, and capturing

individual right whales in violation of the ESA and MMPA and threatening the recovery of this

highly imperiled species.

If, as NMFS suggests, a case to enforce the substantive provisions of the ESA and

MMPA should be stayed because NMFS has merely announced its intent to issue a new

biological opinion and engage in rulemaking under the MMPA, while at the same time

continuing to allow the harmful activities at issue and not disavowing the legal errors of the

biological opinion at issue (and the two preceding it) or its unlawful MMPA practices, citizen

enforcement against federal agencies would be rendered a nullity. Under this theory, an agency


17

could simply state its intent to issue new rules at some future date and stay the enforcement

action for multiple years while continuing to authorize activities that harm protected species

unabated. Congress clearly did not intend to establish this major loophole for federal agencies

when it enacted the ESA citizen suit provision. See Bennett v. Spear, 520 U.S. 154, 164 (1997)

(ESA citizen suit provision allowing “any person” to commence a civil suit is “an authorization

of remarkable breadth”).2 Nor does the APA, under which Plaintiffs seek redress of the wrongs

NMFS has caused them by issuing an unlawful biological opinion and by violating the MMPA,

provide any comparable loophole for federal agencies to avoid the judicial review the APA

provides on the basis of a promise of future action. 5 U.S.C. §§ 702, 704, 706.

II. A Decision on the Merits of Plaintiffs’ Claim Will Serve Judicial Economy and Require NMFS to Act Lawfully in its Rulemaking

Contrary to NMFS’s contentions, a decision on the merits of Plaintiffs’ motion for

summary judgment—not a stay—will best promote judicial economy. The fact this case is

bifurcated into a liability and remedy phase, ECF No. 68-1 at 13, is irrelevant. The Court could

certainly issue a ruling on the merits of Plaintiffs’ claims before NMFS issues a new biological

opinion and MMPA rule, which by NMFS’s best estimate is nearly a year away, as Plaintiffs

have already submitted their opening summary judgment brief and NMFS has a well-

documented pattern of delaying final action. See supra pp. 7–8.3 And an order declaring NMFS

2 NMFS’s assertion that its purported “no-jeopardy” finding in its ESA section 7(d) memorandum justifies the notion that Plaintiffs will suffer no harm from a stay, ECF No. 68-1 at 13, n.9, is equally off-base. The legitimacy—or lack thereof—of this section 7(d) finding, and any potential legal effect, are appropriate topics for a merits brief debate, not a motion to stay. Regardless, Plaintiffs’ allegations of ongoing harm to their legally protectable interests caused by NMFS’s illegal actions at issue here do not stem from, and are not remedied by, the 7(d) finding. 3 The Maine Lobstermen’s Association recently withdrew its support for the ALWTRT’s recommended amendments to the ALWTRP, Ex. 10: NMFS Aug. 2019 Email to TRT, which could further delay the expected timeline articulated in NMFS’s declaration.


18

in violation of the law is particularly important here given the agency’s long history of issuing

unlawful biological opinions and authorizing the lobster fishery in violation of the ESA and

MMPA. See 28 U.S.C. § 2201(a) (under the Declaratory Judgment Act, Court “may declare the

rights and other legal relations of any interested party seeking such declaration, whether or not

further relief is or could be sought.”).4

While NMFS now makes aspirational announcements of its intent to act, NMFS has

taken no action that either cures Plaintiffs’ legal claims or moots the necessity for this Court to

determine NMFS’s liability on Plaintiffs’ four claims and issue declaratory relief. NMFS cannot

rely on the promise of a future action to cure its current legal deficiencies. See Oceana v. Locke,

831 F. Supp. 2d 95, 121–22 (D.D.C. 2011). And there are no compelling reasons to believe

NMFS’s assertions that, in the absence of a court order adjudicating Plaintiffs’ claims, it will: (1)

timely issue a new final rule by the promised date; (2) fully implement in that final regulation the

suite of measures recommended by the TRT, let alone take additional protective measures

needed to ensure full compliance with both the MMPA and ESA; or (3) bring its MMPA and

ESA actions into scrupulous compliance with those statutes, for the first time in the more than

4 NMFS’s Motion to Stay asks the Court to strike portions of Plaintiffs’ summary judgment brief that request declaratory relief on their four claims because the parties agreed to bifurcate discovery and briefing on liability and remedy. See ECF No. 68-1 at 13, n.6. A motion to stay is not the proper vehicle to raise this argument, which should be addressed in NMFS’s summary judgment opposition. Regardless, Plaintiffs’ request is valid. Plaintiffs and NMFS jointly requested, and this Court subsequently ordered, bifurcating discovery and summary judgment motions on the Second and Third Claims into liability and remedy phases, with the latter phase to address Plaintiffs’ requested injunctive relief under these citizen suit claims following any necessary additional discovery. ECF No. 44 at 9–10; ECF No. 48; Minute Order of November 13, 2018; see also 16 U.S.C. § 1540(g)(1)(A) (citizen suit may be brought to enjoin any person, including the United States and any agency alleged to be in violation of the ESA. Plaintiffs’ summary judgment papers thus address NMFS’s liability on all four of Plaintiffs’ claims and request declaratory relief on these claims but do not seek injunctive relief.


19

two-decade history of the ALWTRP. See supra pp. 7–9.

On the last point, NMFS has, for decades, authorized the lobster fishery without take

permits under the MMPA or ESA, despite repeatedly acknowledging that frequent serious

injuries and mortalities occur in the fishery. See supra pp. 9, 14. And NMFS has consistently

authorized the fishery based on biological opinions that suffer from the same legal flaws at issue

in this case. See supra p. 9. Plaintiffs have requested declaratory relief from this Court

specifically to remedy these ongoing violations and require the agency to come into compliance

with its statutory obligations. A stay will not promote judicial economy because NMFS has

never stopped violating the ESA or MMPA. And there is no evidence that new rulemaking, or a

new biological opinion or MMPA List of Fisheries, will resolve the legal issues in this case. See

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (“The

heavy burden of persuading the court that the challenged conduct cannot reasonably be expected

to start up again lies with the party asserting mootness”) (internal citations omitted).

NMFS’s vague assertion that the arguments it will make in its brief opposing Plaintiffs’

motion for summary judgment could undermine its rulemaking efforts, ECF No. 68-1 at 10, are

so nebulous as to defy understanding. Nonetheless, it reinforces the notion that the agency

refuses to admit legal error. See Armster v. U.S. Dist. Court for the Cent. Dist. of Cal., 806 F.2d

1347, 1359 (9th Cir. 1986) (“It has long been recognized that the likelihood of recurrence of

challenged activity is more substantial when the cessation is not based upon a recognition of the

initial illegality of that conduct.”). Similarly, NMFS’s repeated assertion that the new MMPA

rule—which is intended to meet that statute’s mandates by reducing the risk of mortality and

serious injury of right whales by 60–80 percent—will remedy all of Plaintiffs’ claims, ECF No.

68-1 at 2, 11, demonstrates that NMFS may not address the other harmful impacts from


20

entanglement, such as sublethal entanglements that inhibit a whale’s ability to reproduce, thereby

repeating past errors that require the agency to ensure against jeopardy under the ESA.

A ruling on the merits of Plaintiffs’ claims will require lawful agency action and decrease

the chances Plaintiffs will be forced to challenge whatever new decisions NMFS may ultimately

issue. See, e.g., AT&T Corp. v. FCC, 841 F.3d 1047, 1054 (D.C. Cir. 2016) (“[J]udicial economy

suggests that we address some of AT&T’s other arguments to avoid re-litigation of identical

issues in a subsequent petition.”). NMFS’s argument that the Court should stay this case because

Plaintiffs’ claims are prudentially moot, ECF No. 68-1 at 11, therefore fails.

Indeed, courts routinely reject arguments that a plaintiff’s claims are moot, prudentially

or otherwise, in similar situations. For example, in Red Wolf Coalition v. U.S. Fish & Wildlife

Service, the federal defendant argued that the plaintiffs’ claims brought under section 7(a)(2) and

section 9 of the ESA challenging a special rule for endangered red wolves were prudentially

moot because the agency had “undertaken new rulemaking” and “anticipate[d]” a new final red

wolf rule would issue in a few months. 346 F. Supp. 3d 802, 808–09, 811 (E.D.N.C. 2018). The

court rejected the agency’s arguments because the existing rule was still in place. Where

defendants simply intended to issue a new rule by a specific date, the court found, “there [wa]s

no impediment to th[e] Court enjoining defendants or providing declaratory relief pending

publication of a final rule” which lay somewhere in the future. Id. (quoting Defenders of Wildlife

v. Jackson, 791 F. Supp. 2d 96, 111 (D.D.C. 2011)); see also Del Monte Fresh Produce Co. v.

United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (“a plaintiff’s challenge will not be moot

where it seeks declaratory relief as to an ongoing policy”); Cal. Trout, 115 F. Supp. 3d at 1116

(rejecting motion to dismiss section 7 and 9 claims as prudentially moot where action at issue

was ongoing and declaratory and injunctive relief remained available because the defendant had


21

not yet “finalized design of or begun implementing a permanent fix to” the challenged project);

Conserv. Council of Haw., 97 F. Supp. 3d at 1232 (rejecting NMFS’s argument that plaintiffs’

challenge to a biological opinion was anticipatorily moot upon reinitiation of consultation

because NMFS continued to rely on the existing opinion and “ha[d] not acknowledged that the

Biological Opinion is deficient in any specific manner”).5

Even the case upon which NMFS relies recognizes the prudence of ruling on the merits

of a plaintiff’s claims in similar situations. See Nat’l Wildlife Fed’n v. EPA, 925 F.2d 470, 472

(D.C. Cir. 1991) (finding that while new rulemaking “carries a theoretical possibility of

mooting” the plaintiff’s challenge to the legality of an existing regulation, the challenge was still

ripe because the current scheme “remain[ed] in effect pending completion of the new

rulemaking, and [the agency] ha[d] given [the court] no hint that” its new rule will remedy the

legal errors identified by the plaintiffs); see also Forest Guardians v. Johanns, 450 F.3d 455, 462

(9th Cir. 2006) (“[A] declaratory judgment could help to remedy the effects of the agency’s

statutory violations and to ensure that similar violations would not occur in the future.”) (quoting

Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241 (9th Cir. 1988)).

In short, there is no credible reason to assume that, without a ruling from this Court on

Plaintiffs’ claims, NMFS—which has consistently authorized the lobster fishery without the

required take permits or sufficient mitigation measures and has previously issued biological

opinions with the same flaws at issue here—will get it right the next time around. A ruling from

5 Because NMFS reinitiated consultation on the basis of new factual developments, not on the legal flaws identified by Plaintiffs in their motion for summary judgment, see Ex. 5: Reinitiation Memo at 1–2, , this should “offer[ ] the court no guidance to suggest the new biological opinion will substantially alter the approach [NMFS] has taken in the current or previous biological opinions.” Am. Rivers, Inc. v. NOAA Fisheries, No. CV-04-0061, 2004 U.S. Dist. LEXIS 18928, at *14 (D. Or. Sept. 14, 2004).


22

this Court in Plaintiffs’ favor would force lawful and necessary agency action. Judicial economy

is not served in staying this case while NMFS continues to flout federal law.

III. NMFS Has Not Demonstrated Clear Hardship or Inequity

In contrast to the prejudice Plaintiffs will suffer in the event that the resolution of their

claims is delayed even further by a stay, NMFS has not demonstrated a clear hardship or inequity

if the case proceeds. NMFS’s primary arguments that continuing to litigate this case pursuant to

a schedule that it negotiated and approved will divert agency resources away from rulemaking,

and, indeed, “undermine the delicate balance” of the TRT-negotiated agreement, ECF 68-1 at 10,

are grossly insufficient.

Courts have held that “being required to defend a suit . . . does not constitute a ‘clear case

of hardship or inequity.’” Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005) (citation

omitted). That is particularly true here, where the agency has already filed the administrative

record and responded to Plaintiffs’ discovery requests, and where NMFS’s summary judgment

brief will be drafted, not by agency staff, but by its lawyers at the U.S. Department of Justice.

Moreover, NMFS’s argument is undermined by the facts it points to in support of its motion. For

example, NMFS highlights numerous meetings it already held with the ALWTRT and various

subgroups over the last three years, ECF No. 68-1 at 7, covering the timeframe during which this

litigation has been pending and active. See Cal. Trout, 115 F. Supp. 3d at 1117 (denying motion

to stay where the defendants asserted that litigating the case “would divert agency staff from

carrying out their mission to complete the new ESA [process]”).

NMFS also asserts that being required to file an opposition brief would force it “to take

certain positions on the complicated issues that States, industry groups, and conservation groups”

negotiated at the ALWTRT in 2018–2019 and could “undermine the delicate balance” that


23

NMFS and the ALWTRT struck in April 2019. ECF No. 68-1 at 10. These assertions are

simultaneously so vague as to be incomprehensible (“certain positions” on “complicated

issues”), thus failing to meet the burden of demonstrating a “clear case” of hardship or inequity,

and also demonstrably unfounded. The ALWTRT process concluded four months ago, and the

ALWTRT itself has no further involvement in the forthcoming rulemaking in any advisory body

capacity. It is now solely NMFS’s statutory burden to amend the ALWTRP to come into

compliance with the MMPA, 16 U.S.C. § 1387(f)(7)(B), (C), (F), and to comply with the ESA’s

duty to avoid jeopardizing the right whale in so doing. Id. § 1536(a)(2). To the extent NMFS was

so concerned about “taking certain positions” in merits briefing that would undermine the

ALWTRT process, it could have filed its motion for stay as early as January 2018, and certainly

at any of the numerous intervening stages along the way. Its failure to do so, and that it only

moved for a stay after the parties completed a lengthy process to compile the administrative

record and complete discovery and Plaintiffs filed their motion for summary judgment, militate

heavily against any claim of inequity or hardship on NMFS’s part.

Moreover, NMFS fails to address the fact that three out of Plaintiffs’ four claims arise

under the ESA. NMFS does not explain why defending the lawfulness of its 2014 BiOp and

explaining why it is not in violation of its ongoing duties under ESA sections 7 and 9 to avoid

jeopardy and unpermitted incidental take in court will “unravel the process set in motion by the

TRT.” ECF No. 68-1 at 10. Nor does Plaintiffs’ MMPA claim challenge the ALWTRP itself but

instead the agency’s unlawful practice of facilitating without authorizing the unpermitted

incidental take of right whales. NMFS has not begun to explain why defending these claims is at

all relevant—let alone fatal—to the MMPA rulemaking process it is now undertaking.


24

Likewise, NMFS’s accusation that Plaintiffs are somehow “circumvent[ing]” or

“undermin[ing]” the TRT process by seeking recourse from this Court to remedy the agency’s

longstanding legal violations does not demonstrate inequity or hardship. See ECF No. 68-1 at 11.

The fact that NMFS has established the ALWTRT, or that a subset of Plaintiffs are on that TRT,

does not abrogate either Plaintiffs’ First Amendment right to petition their government for

redress of grievances or their statutory right to seek judicial redress under the ESA and APA.

Nor does it change the agency’s legal obligations under the ESA and MMPA. It is precisely

because of NMFS’s repeated failures to comply with both the ESA and MMPA in authorizing

and managing the lobster fishery that Plaintiffs filed suit in January 2018. Granting NMFS’s stay

would only condone these longstanding violations and serve to further delay the protections from

deadly, painful entanglements that are threatening the right whale’s very existence.

CONCLUSION

Plaintiffs’ and the public’s interests in conserving critically endangered right whales and

ensuring NMFS’s compliance with federal law will likely be significantly harmed should the

agency’s request for a stay be granted. By contrast, a year and a half into the case, NMFS merely

seeks to avoid its upcoming deadlines to submit its summary judgment briefing. Because NMFS

has failed to demonstrate a clear case of hardship and inequity in being required to move

resolution of the merits of Plaintiffs’ claims forward, the Court should deny NMFS’s Motion for

a Stay.

DATED: September 3, 2019 Respectfully submitted,


25

/s/ Kristen Monsell Kristen Monsell, admitted pro hac vice Center for Biological Diversity 1212 Broadway, Ste. 800 Oakland, CA 94612 (510) 844-7137 [email protected] Sarah Uhlemann, DC Bar No. 501328 Center for Biological Diversity 2400 80th Street NW, #146 Seattle, WA 98117 (206) 327-2344 [email protected] Jane P. Davenport, DC Bar No. 474585 Defenders of Wildlife 1130 17th Street, NW Washington, DC 20036 (202) 722-3274 [email protected] Laura Smythe, DC Bar No. NY0217 The Humane Society of the United States 1255 23rd Street, NW Suite 450 Washington, DC 20037 (202) 676-2331 [email protected] Attorneys for Plaintiffs Center for Biological Diversity, Defenders of Wildlife, The Humane Society of the United States

/s/ (with permission) Erica A. Fuller (DC Bar No. MA0001) Conservation Law Foundation 62 Summer St. Boston, MA 02110 Tel.: 617-850-1754 Fax: 617-350-4030 [email protected] Emily K. Green (DC Bar No. ME0002) Sean Mahoney (Pro Hac Vice) (Maine Bar No. 8661) Conservation Law Foundation 53 Exchange St., Suite 200 Portland, ME 04101 Tel.: 207-210-6439 Fax: 617-350-4030 [email protected] [email protected] Attorneys for Plaintiff Conservation Law Foundation


26

CERTIFICATE OF SERVICE

I hereby certify that on September 3, 2019, I caused the foregoing to be filed and served

upon counsel of record via the Court’s CM/ECF filing system, which will send notice of such to

all counsel of record.

/s/ Kristen Monsell

Kristen Monsell


1


CENTER FOR BIOLOGICAL ) DIVERSITY, et al., ) )

Plaintiffs, ) Civil Action Nos. 18-112 (JEB) ) 18-283 (JEB) v. ) ) WILBUR ROSS, et al., ) )

Federal Defendants, and ) ) MAINE LOBSTERMEN’S ) ASSOCIATION, INC., and ) MASSACHUSETTS LOBSTERMEN’S ) ASSOCIATION, ) ) Defendant-Intervenors. ) ____________________________________)

DECLARATION OF KRISTEN MONSELL

I, Kristen Monsell, declare as follows:

1. I am admitted in this case pro hac vice and am counsel for Plaintiffs Center for

Biological Diversity, Defenders of Wildlife, and the Humane Society of the United States in this

case.

2. Attached hereto as Exhibit 1 is a true and correct copy of the July 3, 2019

statement of Chris Oliver, the Assistant Administrator for NOAA Fisheries, titled “Immediate

Action Needed to Save North Atlantic Right Whales.” I obtained a copy via the National Marine

Fisheries Service’s website here: https://www.fisheries.noaa.gov/leadership-message/immediate-

action-needed-save-north-atlantic-right-whales.

3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the

National Marine Fisheries Service’s biological opinion dated July 31, 2014 titled “Endangered

Case 1:18-cv-00112-JEB Document 71-1 Filed 09/03/19 Page 1 of 4

2

Species Act Section 7 Consultation on the Continued Implementation of Management Measures

for the American Lobster Fishery [Consultation No. NER-2014-11076].” I obtained a copy of the

biological opinion from the administrative record submitted for Plaintiffs’ First Claim. The

document begins at page _0000000026652 of the record for that claim.


National Marine Fisheries Service’s biological opinion dated October 29, 2010 titled

“Endangered Species Act Section 7 Consultation on the Continued Implementation of

Management Measures for the American Lobster Fishery [Consultation No. F/NER-2003-

00956].” I obtained a copy of the biological opinion from the administrative record submitted for

Plaintiffs’ First Claim. The document begins at page _0000000003611 of the record for that

claim.


National Marine Fisheries Service’s biological opinion dated August 3, 2012 titled “Endangered

Species Act Section 7 Consultation on the Continued Implementation of Management Measures

for the American Lobster Fishery [Consultation No. F/NER/2012/01456].” I obtained a copy of

the biological opinion from the administrative record submitted for Plaintiffs’ First Claim. The

document begins at page _0000000028270 of the record for that claim.

6. Attached hereto as Exhibit 5 is a true and correct copy of the National Marine

Fisheries Service’s memorandum titled “Reinitiating Consultation on the Batched Fisheries,

American Lobster, and Atlantic Deep-Sea Crab Biological Opinions and associated Fishery

Management Plans” dated October 17, 2017. I obtained a copy of the biological opinion from the

administrative record submitted for Plaintiffs’ Fourth Claim. The document begins at page

_000000001408 of the record for that claim.


3

7. Attached hereto as Exhibit 6 is a true and correct copy of an email from the

National Marine Fisheries Service to the Atlantic Large Whale Take Reduction Team dated

April 5, 2019. I obtained a copy as a member of the Atlantic Large Whale Take Reduction Team

and via the National Marine Fisheries Service’s website here:

https://www.greateratlantic.fisheries.noaa.gov/protected/whaletrp/trt/meetings/April%202019/06

take reduction target letter april52019.html.

8. Attached hereto as Exhibit 7 is a true and correct copy of excerpts of the National

Marine Fisheries Service’s report dated February 2019 titled “NORTH ATLANTIC RIGHT

WHALE (Eubalaena glacialis): Western Atlantic Stock.” I obtained a copy via the National

Marine Fisheries Service’s website here: https://www.fisheries.noaa.gov/national/marine-

mammal-protection/marine-mammal-stock-assessment-reports-species-stock.

9. Attached hereto as Exhibit 8 is a true and correct copy of excerpts of the National

Marine Fisheries Service’s slide presentation dated August 2019 titled “August 2019 Scoping

Meetings Developing Modifications to the Atlantic Large Whale Take Reduction Plan Maine,

August 2019. I obtained a copy via the National Marine Fisheries Service’s website here:

https://www.fisheries.noaa.gov/event/atlantic-large-whale-take-reduction-plan-scoping-meeting-

machias-maine.

10. Attached hereto as Exhibit 9 is a true and correct copy of the National Marine

Fisheries Service’s webpage last updated August 29, 2019 titled “2017-2019 North Atlantic

Right Whale Unusual Mortality Event”: https://www.fisheries.noaa.gov/national/marine-life-

distress/2017-2019-north-atlantic-right-whale-unusual-mortality-event.

11. Attached hereto as Exhibit 10 is a true and correct copy of an email from the

National Marine Fisheries Service to the Atlantic Large Whale Take Reduction Team dated


4

August 31, 2019. I obtained a copy of the email as a member of the Atlantic Large Whale Take

Reduction Team.

Pursuant to the laws of the District of Columbia and of the United States of America, I

declare under penalty of perjury that the foregoing is true and correct.

Executed on September 3, 2019, in Oakland, California.

/s/ Kristen Monsell Kristen Monsell


EXHIBIT 1


8/28/2019 Immediate Action Needed to Save North Atlantic Right Whales | NOAA Fisheries

https://www.fisheries.noaa.gov/leadership-message/immediate-action-needed-save-north-atlantic-right-whales 1/3

Immediate Action Needed toSave North Atlantic RightWhalesJuly 03, 2019

With about 400 whales left, we have an urgent conservation crisis. The United Statesseeks to work with Canada to take immediate action to protect this species.

North Atlantic right whales seen during aerial surveys near Massachusetts Bay. Image collected under MMPAresearch permit 17355.




The North Atlantic right whale is one of the world’s most endangered large whale species, withonly about 400 whales remaining. The situation has become even more alarming with therecent discovery of six North Atlantic right whale deaths and one entanglement in the Gulf of St.Lawrence in Canada. Four deaths were mature females. With fewer than 95 breeding femalesleft, protecting every individual is a top priority. Right whales cannot withstand continued lossesof mature females—we have reached a critical point.

Vessel strikes and entanglement in fishing gear are the two greatest threats to these whales,and to make matters more complex, their habitat overlaps with commercially important areas.As right whales live and travel more than 1,000 miles from their feeding grounds off theCanadian Maritimes and New England to the warm coastal waters off South Carolina, Georgia,and northeastern Florida, it is the responsibility of the governments of the United States andCanada as well as the fishing and shipping industries in both countries to ensure that thesewhales have a safe place to live, feed, and reproduce for their survival.

The United States has endeavored for many years to reduce the risks to North Atlantic rightwhales from entanglement in fishing gear and collisions with ships, and we continually refine ourmanagement measures to support recovery of this critically endangered population. In 2008, weadopted ship strike reduction measures that include seasonal speed restrictions near shippinglanes when right whales might be present. Since 1997, we have worked with stakeholders onthe Atlantic Large Whale Take Reduction Plan to reduce the impacts of commercial fishing gearon right whales. We are currently expediting measures to reduce an additional 60 percent ofserious injuries and lethal entanglement risks as recommended by our Take Reduction Team inApril 2019.

U.S. fishermen are committed to protecting right whales and make up more than a third of ourTake Reduction Team. To do more in the face of continued human-caused right whale mortality,we recognize their efforts alone are not enough to provide comprehensive protection for thistransboundary species. We have been coordinating closely with Canada to share innovativetechniques and solutions that foster healthy fisheries, reduce the risk of entanglements, andcreate whale-safe shipping practices.

Since 2017, much of this collaboration has been through a North Atlantic right whale bilateralworking group, which meets twice a year to exchange information on the state of the science forthis species as well as share information on management measures.

Preventing any additional deaths of North Atlantic right whales is our highest priority. To do this,we must work with our partners to strengthen protections immediately. As such, I wrote to theCanadian government (Department of Fisheries and Oceans as well as Transport Canada) torequest that we meet as soon as possible and urge them to take immediate action to providecomprehensive protection for this species.




Chris OliverAssistant Administrator for NOAA Fisheries

Last updated by Office of Communications on July11, 2019


EXHIBIT 2


EXHIBIT 3


EXHIBIT 4


141

been implemented, but have not been in place long enough for their full beneficial effect to be realized in the population. It is anticipated that it would take at least five years after implementation to be able to detect any changes in the population as a result of these management measures. The vertical line strategy that is being developed under the ALWTRP, when implemented, would also benefit the population. While the details of the vertical line strategy are still being developed in consultation with the ALWTRT, there is a commitment by NMFS to its implementation within a given time schedule (as described in Section 4.4.5.1). Additionally, fishing effort in the American lobster fishery is expected to be reduced as a result of lobster trap effort control and trap transferability measures approved by the Atlantic States Marine Fisheries Commission and in evaluation by the NMFS (NMFS 2010i).

As described above and as indicated in Pace (unpublished), North Atlantic right whales have a very low risk (zero model projections) of going extinct or reaching quasi extinction over the next 100 years under status quo conditions, including the serious injuries and mortalities caused by U.S. fishing gear. The actual population is increasing at a rate targeted for downlisting (if

and is projected to do so into the future. The projected and observed mean population growth for the past 17 years provides evidence that the species has sufficient resilience to allow for recovery from endangerment. It is important to consider that the action being considered in this Opinion is not new, it is ongoing and the right whale population has been increasing while the lobster fishery has continued to occur and continued to impact right whales. No changes to the fishery are being proposed that would increase the potential for interactions between the fishery and right whales.

Based on the analysis described above, the serious injury or mortality of zero to three right whales per year as a result of fisheries entanglement in U.S. gear over the next ten years is not likely to reduce appreciably the likelihood of both survival and recovery of North Atlantic right whales.

8.1.2 Humpback Whale

As established above, the use of pot/trap gear for the proposed activity is expected to result in the entanglement of humpback whales. An annual average of 0.2 SI/M events of humpbacks in lobster gear has been documented for the period 2005-2009 (NMFS NERO 2012). During that same time period, the average documented SI/M events for humpbacks in all entangling gear were 2.8 annually (NMFS NERO 2012). It should be noted that this database includes a large number of entanglements with undocumented gear types, which may include non-fishery related gear like anchoring systems and mooring gear. Another accounting of serious injury/mortality events for humpback whales from 2005-2009 indicates the annual rate of documented occurrences with all commercial fishing gear types in U.S. waters has been 3.4 (Waring et al.2011). This annual rate as calculated over a five year period has remained relatively stable, withthe 2010 assessment being 2.8 (covering 2004-2008), the 2009 assessment being 2.4 (covering 2003-2007), the 2008 assessment being 2.6 (covering 2002-2006) and the 2007 assessment being 2.4 (covering 2001-2005). Levels of interactions with whales prior to 2006 were calculated


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incidental to, and not the purpose of, the execution of an otherwise lawful activity. Under the terms of Sections 7(b)(4) and 7(o)(2), taking that is incidental to and not intended as part of the action is not considered to be prohibited taking under the ESA provided that such taking is in compliance with the terms and conditions of this Incidental Take Statement (ITS).

When a proposed NMFS action is found to be consistent with section 7(a)(2) of the ESA, section 7(b)(4) of the ESA requires NMFS to issue a statement specifying the impact of incidental taking, if any. It also states that reasonable and prudent measures necessary to minimize impacts of any incidental take be provided along with implementing terms and conditions. The measures described below are non-discretionary and must therefore be undertaken in order for the exemption in section 7(o)(2) to apply. Failure to implement the terms and conditions through enforceable measures, may result in a lapse of the protective coverage section of 7(o)(2).

Anticipated Amount or Extent of Incidental Take

Based on data from STDN, estimates of sea turtle take in trap/pot gear used in the American lobster fishery, and the distribution and abundance of turtles in the action area, NMFS anticipates that the continued implementation of the American Lobster FMP, may result in the taking of sea turtles in federal waters as follows:

for loggerhead sea turtles, NMFS anticipates the annual lethal or non-lethal take of up to one individual in American lobster pot/trap gear;

for leatherback sea turtles, NMFS anticipates the annual lethal or non-lethal take of up to five individuals in American lobster pot/trap gear.

NMFS is not including an incidental take authorization for right, humpback, fin, and sei whales at this time because the incidental take of ESA-listed whales has not been authorized under section 101(a)(5) of the MMPA. Following the issuance of such authorizations, NMFS may amend this Opinion to include an incidental take allowance for these species, as appropriate.NMFS recognizes that further efforts among stakeholders are necessary to reduce interactions between authorized federal fisheries and right, humpback, fin, and sei whales in order to achieve

ncidental mortality and serious injury of marine mammals approaching a zero mortality and serious injury rate, taking into consideration the economics of the fishing industry, the availability of existing technology, and existing State or regional fishery management plans. NMFS continues to work toward this zero mortality goal of the MMPA through the means identified in the pertinent subsections of section 4.4 above, including continued development and implementation of the ALWTRP with the collaboration of the ALWTRT. Although NMFS has concluded that the American lobster fishery is not likely to jeopardize the continued survival or recovery of right, humpback, fin, and sei whales for purposes of ESA Section 7, the need for further efforts among stakeholders to reduce whale/fishery interactions and achieve the zero mortality goal of the MMPA is not diminished by this no-jeopardy conclusion.


EXHIBIT 5


MEMORANDUM FOR:

FROM:

SUBJECT:

Michael Pentony

UNITED STATES DEPARTMENT OF COMMERCENational Oceanic and Atmospheric AdministrationNATIONAL MARINE FISHERIES SERVICEGREATER ATLANTIC REGIONAL FISHERIES OFFICE55 Great Republic DriveGloucester, MA 01930-2276

OCT 1 7 2017

Assistant Regional Administrator

for Sustainable Fisheries !PzKimberly B. Damon-RandallAssistant Regional Administrat rfor Protected Resources

Reinitiating Section 7 Consultation on the Batched Fisheries,American Lobster, and Atlantic Deep-Sea Red Crab BiologicalOpinions and associated Fishery Management Plans

Under the Endangered Species Act (ESA), NOAA Fisheries' (NMFS) Greater Atlantic RegionalFisheries Office (GARFO), Protected Resources Division (PRD) serves as the "consultingagency" to assist Sustainable Fisheries Division (SFD) as the "action agency," oversee theimplementation of fishery management plans (FMPs) in the Greater Atlantic Region, fromMaine to North Carolina and in accordance with the requirements of the ESA, specificallySection 7 . In January 2 0 1 5 , NMFS published Policy Directive 0 1 -1 1 7 that covers the integrationofESA Section 7 with the Magnuson-Stevens processes. On December 1 6, 2 0 1 3 , PRDcompleted formal consultation pursuant to section 7 of the Endangered Species Act (ESA) of1 97 3 , as amended, and issued a biological opinion (Batched Fisheries BiOp) for the followingFMPs, overseen by SFD: Northeast multispecies, monkfish, spiny dogfish, Northeast skatecomplex, Atlantic mackerel/squid/butterfish, Atlantic bluefish, and summer flounder/scup/blacksea bass. On March 1 0 , 2 0 1 6 , we issued a revised Incidental Take Statement for the BatchedFisheries BiOp in response to the remand order of the D.C. District Court in Oceana, Inc. v.Pritzker, Civ. No. 1 2 -0 0 41 . In addition to these fisheries, we completed formal consultation andissued BiOps on the Atlantic Deep-Sea Red Crab FMP on February 6, 2 0 0 2 and on the InterstateFishery Management Plan for American Lobster (ISFMP) on July 31 , 2 0 1 4. Together, these ESASection 7 BiOps considered the effects of the continued operation of these fisheries as managedunder their respective FMPs and determined that the continued operation of these fisheries wasnot likely to jeopardize the continued existence of any ESA-listed species or destroy or adverselymodify designated critical habitats of such species under our jurisdiction.

On September 1 8, 2 0 1 7 , new information was made available that indicates that the NorthAtlantic right whale abundance has been in decline since 2 0 1 0 (Pace III RM, Corkeron PJ, KrausSD. State-space mark-recapture estimates reveal a recent decline in abundance of North Atlanticright whales. Ecol Evol. 2 0 1 7 ;0 0 :1 - 1 2 .). Specifically, the new information shows that althoughthe North Atlantic right whales' abundance increased at about 2 .8% each year from 1 990 to 2 0 1 0 ,it has since been in decline. This new information is different from the information analyzed in

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the previous BiOps listed above and may reveal effects from the fisheries analyzed in theBatched Fisheries, Lobster, and Red Crab BiOps that may not have been previously considered.

In addition, the Lobster and Batched Fisheries BiOps contain different numerical serious injuryand mortality (SI/M) reinitiation triggers for large whales. Based on the most recent NorthAtlantic right whale stock information contained in the final 2 0 1 6 Marine Mammal StockAssessment Report, June 2 0 1 7 (SAR), the reinitiation trigger for the Batched Fisheries BiOp hasbeen exceeded. Furthermore, preliminary information in the Draft 2 0 1 7 SAR indicates that thereinitiation trigger for the Lobster BiOp will also be exceeded. The Red Crab BiOp does notcontain reinitiation triggers for large whales; however, the red crab fishery uses pot/trap gearequipped with vertical lines similar to that used in the lobster fishery.

Reinitiation of ConsultationAs provided in 50 CFR § 40 2 .1 6 reinitiation of formal consultation is required wherediscretionary federal agency involvement or control over the action has been retained (or isauthorized by law) and if: (1 ) the amount or extent oftaking specified in the incidental takestatement is exceeded; (2 ) new information reveals effects of the action that may not have beenpreviously considered; (3) the identified action is subsequently modified in a manner that causesan effect to listed species; or (4) a new species is listed or critical habitat designated that may beaffected by the identified action.

With regard to its authorization of these fisheries, NMFS retains discretionary involvement orcontrol over the action for the benefit of listed species. We have determined that formal section 7 consultation on the fisheries covered by the ISFMP, and the Batched Fisheries and Red CrabFMPs, must be reinitiated due to new information regarding the changed status of right whalesand the large whale SI/M reinitiation triggers being exceeded for the Batched Fisheries andpossibly the Lobster BiOps. Included in this consultation are all NMFS management actionscovered by the FMPs in the form of gear and/or fishery related scientific research conducted byNMFS or any individual or enterprise working with federal source funds. This includes grantsfrom another line office, internal grants, or permits (e .g. , exempted fishing permits, specialmanagement program gear permits, etc.), including research set asides.

As part of the formal consultation, we intend to merge the Lobster, Red Crab and BatchedFisheries into one opinion. Therefore, all fishery management plans covered by the BatchedFisheries, Lobster, and Red Crab BiOps will be batched into one consultation (Fisheries BiOp)so that we can look at effects across FMPs by gear type. This allows us to more accuratelydescribe and evaluate the interactions between agency authorized fishing activity and ESA-listedspecies and to more accurately focus our efforts to avoid and reduce those interactions.

The ESA and the section 7 regulations (50 CFR 40 2 .1 4) require that formal consultation beconcluded within 90 calendar days of initiation, and that a biological opinion be completedwithin 45 days after the conclusion of formal consultation. However, for this reinitiation, ourtimeline will be contingent upon the availability of new information that is necessary toadequately assess the effects of the fisheries on ESA-listed species. Specifically, the U.S. hasassembled multiple working groups both internally and externally with Canada to jointly addressthe new information on the declining status of right whales. The engagement of these working

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groups between the U.S. and Canada is essential to the recovery of the North Atlantic right whaleas the range of the species spans both country's territorial waters. The working groups are justnow forming given the information that was just published on the status of right whales todiscuss and analyze the best available science and to identify data and management gaps that areimpeding recovery of right whales. The outputs and advice and any recommendations of theseworking groups will be crucial to inform the consultation of the Fisheries BiOp. Thus, thetimeline for completion of the Final BiOp is contingent upon the information put forth by theseworking groups being available for use in the consultation.

During consultation, we will also review new information on listed sturgeon, Atlantic salmon,and sea turtles that has become available since consultations on these fisheries were lastcompleted, and we will incorporate new information and analysis into the new Fisheries BiOp asappropriate.

Planning and Development of Fisheries BiOpWe developed a formalized process for joint Northeast Fisheries Science Center(NEFSC)/GARFO team coordination through the implementation of Biological Opinion ActionTeams (BOATs) to ensure a close working relationship between SFD as the action agency andPRD as the consulting agency during the ESA Section 7 consultation process. The NEFSC, isalso included to ensure we have the best available information available and scientific adviceduring our analysis and preparation of the BiOp. The BOAT process identified three steps asfollows: (1 ) planning and data identification; (2 ) review of background information anddiscussion of approaches to effects analysis; and (3) receive and discuss comments after a reviewof a completed draft BiOp.

As part of this process, we are proposing to meet with SFD and NEFSC staffto discuss steps oneand two for all impacted fisheries, including identification of new information on the individualfisheries and updates to the Status of Species sections for the ESA listed species affected by thefishery actions (large whales, sea turtles, Atlantic sturgeon, and Atlantic salmon). Once thebackground information has been compiled, the BOAT can then discuss approaches to the effectsanalysis. A meeting among the BOAT can also be arranged if necessary.

The third step of the BOAT process includes review of the draft BiOp. In accordance withNMFS Policy Directive 0 1 -1 1 7 (January 1 9, 2 0 1 5), SFD, in its role as the action agency in theinteragency consultation process, can determine whether or not to share the Draft BiOp with theCouncils and Atlantic States Marine Fisheries Commission (ASMFC) for their review. SFD maywant to share the Draft BiOp with the Councils and ASMFC based on prior experience with the2 0 1 3 Batched Fisheries BiOp; however, it is not required. Regardless, we do expect SFD willcoordinate closely with the Councils and ASMFC to keep them informed of progress with thenew Fisheries BiOp. PRD will work closely with SFD to ensure you have the information youneed.

We also appreciate SFD communicating with the Councils and ASMFC regarding potentialconsequences of the reinitiation process. Although Council and ASMFC staffare not members ofthe BOAT, PRD will continue to closely coordinate with SFD staffto ensure the Councils andASMFC are fully informed regarding project progress.

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Section 7(a)(2) Analysis for the Reinitiation PeriodThis memorandum documents our determinations that allowing these fisheries and associatedresearch to continue during the reinitiation periodwill not violate ESA sections 7 (a)(2 ) and 7 (d).The section 7 (a)(2 ) analysis below for whales, sea turtles, Atlantic sturgeon, and Atlantic salmonis only applicable to the proposed action during the reinitiation period and does not address theagency' s obligation to insure that the action over a longer term is not likely to jeopardize listedspecies. A jeopardy determination commensurate with the temporal scope of the action isappropriately made only in a biological opinion.

For the consultations being reinitiated, we have previously concluded that the actions consideredwill not jeopardize the continued existence of any species of whale, sea turtle, sturgeon, orAtlantic salmon. Allowing these fisheries to continue during the reinitiation period will notincrease the likelihood of interactions with these species above the amount that would otherwiseoccur if consultation had not been reinitiated, because allowing these fisheries to continue doesnot entail making any changes to any fishery during the reinitiation period that would cause anincrease in interactions with whales, sea turtles, sturgeon, or Atlantic salmon. Because of this,the continuation ofthese fisheries during the reinitiation period would not be likely to jeopardizethe continued existence of any whale, sea turtle, Atlantic salmon, or sturgeon species.

Section 7 (d) ConsiderationsSection 7 (d) of the ESA prohibits Federal agencies from making any irreversible or irretrievablecommitment of resources with respect to the agency action that would have the effect offoreclosing the formulation or implementation of any reasonable and prudent alternatives at theconclusion of the consultation. This prohibition is in force until the requirements of section7 (a)(2 ) have been satisfied. Section 7 (d) does not prohibit all aspects of an agency action fromproceeding during consultation; non-jeopardizing activities may proceed as long as theirimplementation would not violate section 7 (d).

NMFS is not expending, and does not have to expend, any financial resources, enter into anybinding agreements or commit other resources in order to allow these fisheries to continue tooperate during the reinitiation period. The fisheries under consideration will continue to operateunder their respective FMPs unless NMFS takes action under the Magnuson-Stevens FisheryConservation and Management Act (Magnuson-Stevens Act) to stop them or modify theoperation in some manner. FMPs and their implementing regulations are always subject to futurechanges. NMFS has discretion to amend its Magnuson-Stevens Act and ESA regulations andmay do so at any time subject to the Administrative Procedure Act and other applicable laws.Further, commitments of industry resources during the reinitiation period are not irreversible orirretrievable since NMFS retains the legal authority to restrict activities of fishery participantsshould new information require modification of current restrictions.

ConclusionsBased on this analysis, we have determined that reinitiation of consultation on the nine subjectfisheries is required and that allowing these fisheries to continue to operate during the reinitiationperiod will not violate section 7 (a)(2 ) or 7 (d). The 7 (a)(2 ) determination is only applicable

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during the reinitiation period and does not address the agency's longer term obligation to ensurethe action is not likely to jeopardize the continued existence of listed species.

ec: F/NER2- PentonyF/NER3- Damon-Randall, Murray-Brown, Barnhill, MarroneGCNE- Almeida

File Code: H:\Section 7 Team\Section 7 \Fisheries\Fisheries BiOp\Reinitiation memoPCTS: NER-2 0 1 7 -1 4461

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EXHIBIT 6


8/28/2019 Take Reduction Target Letter April 5, 2019 :: NOAA Fisheries

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Take Reduction Target Letter April 5, 2019FOR IMMEDIATE RELEASE:April 5, 2019

To: TRT Members and Alternates:

Throughout the past year, as we’ve met to discuss modifications to the Atlantic Large Whale Take ReductionPlan, NMFS has consistently stressed that significant changes will be needed to achieve the MarineMammal Protection Act (MMPA) goal of reducing mortality and serious injury (M/SI) below the North Atlanticright whale Potential Biological Removal (PBR) level of 0.9. As explained below, we believe that to achievethis goal, mortalities and serious injuries in U.S. fisheries will likely need to be reduced by 60 to 80% fromcurrent levels.

As you all know, despite two decades of the Take Reduction Team’s efforts, right whale entanglementmortalities and serious injuries continue to exceed PBR. The modest upward trajectory of the populationthrough the early 2000s appears to have reversed since 2010. This downward trend, exacerbated byunprecedented mortalities (particularly in the Gulf of St. Lawrence snow crab fishery) in 2017, lends a newurgency to the Take Reduction Team’s continued collaboration to modify the Plan to get M/SI below PBR.

Identifying our take reduction target:

The draft 2018 North Atlantic right whale stock assessment establishes a PBR level of 0.9 right whalesa year based on 2016 population estimates. The report documents a minimum rate of average annual rightwhale mortalities and serious injuries caused by entanglements over the five-year period from 2012 to 2016as 5.15 whales per year. An annual average of 0.4 of these mortalities and serious injuries were attributed toU.S. fisheries and 0.4 mortalities per year were attributed to Canadian fisheries; 4.4 of the documentedmortalities and serious injuries could not be attributed to a fishery in either country. Since the draft reportwas published, an additional mortality may have been attributed to Canadian snow crab gear: under thisassumption, 4.2 remain unattributed.

Although right whales spend more time exposed to fisheries in U.S. waters than in Canadian waters, for thepurposes of guiding the development of take reduction measures, we are making an assumption that 50%of right whale mortalities and serious injuries occur in each country. This assumption is supported by theanalysis of recovered entangling gear. The heavy traps and large diameter high breaking strength linesused to target snow crabs in Canada are more lethal than most U.S. fishing gear. Additionally, takereduction measures implemented in U.S. fisheries over the past two decades have reduced the impacts ofU.S. fisheries.

Under this assumption, for the period between 2012 and 2016, an annual average of up to 2.5 - 2.6mortalities and serious injuries are attributed to U.S. fisheries, more than 2.5 times greater than PBR. Reducing mortality and serious injury by at least 60% in U.S. fisheries would likely be needed to get belowthe PBR level of 0.9.

These numbers include only documented mortalities and serious injuries. Actual mortalities and seriousinjuries of right whales in U.S. fisheries are likely higher than the observed 2.6 per year. Population modelsprovide an estimate of mortalities that suggest that 60% of right whale mortalities and serious injuries areunobserved (Pace, personal communication applying the methods from Pace et al. 2017).

If the average observed mortalities and serious injuries caused by entanglements for 2012 through 2016 is5.15, given the 60% detection rate, the estimated annual mortality and serious injury by entanglements is8.6 per year. If we assume half of the estimated mortalities and serious injuries occur incidental to U.S.fisheries (4.3), mortality and serious injury would have to be reduced by about 80% in U.S. fisheries to getbelow the stock’s PBR of 0.9.

Canada implemented static and dynamic closures in 2018 that appeared to effectively prevent mortalities inthe Gulf of St. Lawrence trap/pot fisheries last year. They have announced more focused measures in 2019that we hope will be similarly successful. NMFS will continue to collaborate with Canada through ongoingbilateral discussions to ensure sustained take reduction efforts throughout the right whale’s range.

We know this target is daunting, but it is necessary to ensure the recovery of the North Atlantic right whalepopulation. We hope that your creative ideas and willingness to continue to collaborate with each other atour upcoming meeting will generate recommended measures that will be meaningful to the population’srecovery and manageable for the fishing industry. We remain committed to working closely with youthroughout this process.

For Team members who have not yet made their reservations or secured their travel authorization fromKathy Scola, please refer to my earlier email (March 12 "ALWTRT April Meeting Travel Instructions." Ourroom block is filling quickly, and closes April 9.

Regards,

Colleen

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EXHIBIT 7


14

February 2019

NORTH ATLANTIC RIGHT WHALE (Eubalaena glacialis): Western Atlantic Stock

STOCK DEFINITION AND GEOGRAPHIC RANGE

The western North Atlantic right whale population ranges primarily from calving grounds in coastal waters of the southeastern U.S. to feeding grounds in New England waters and the Canadian Bay of Fundy, Scotian Shelf, and Gulf of St. Lawrence. Mellinger et al. (2011) reported acoustic detections of right whales near the nineteenth-century whaling grounds east of southern Greenland, but the number of whales and their origin is unknown. However, Knowlton et al. (1992) reported several long-distance movements as far north as Newfoundland, the Labrador Basin, and southeast of Greenland. In addition, resightings of photographically identified individuals have been made off Iceland, in the old Cape Farewell whaling ground east of Greenland (Hamilton et al. 2007), in northern Norway (Jacobsen et al. 2004), and in the Azores (Silva et al. 2012). The September 1999 Norwegian sighting represents one of only two published sightings in the 20th century of a right whale in Norwegian waters, and the first since 1926. Together, these long-range matches indicate an extended range for at least some individuals and perhaps the existence of important habitat areas not presently well described. A few published records from the Gulf of Mexico (Moore and Clark 1963; Schmidly et al. 1972; Ward-Geiger et al. 2011) likely represent occasional wanderings of individual female and calf pairs beyond the sole known calving and wintering ground in the waters of the southeastern U. S. The location of much of the population is unknown during the winter. Davis et al. (2017) recently pooled together detections from a large number of passive acoustic devices and documented broad-scale use of much more of the U.S. eastern seaboard than previously believed. Further, there has been an apparent shift in habitat use patterns (Davis et al. 2017). Surveys flown in an area from 31 to 160 km from the shoreline off northeastern Florida and southeastern Georgia from 1996 to 2001 had 3 sightings in 1996, 1 in 1997, 13 in 1998, 6 in 1999, 11 in 2000, and 6 in 2001 (within each year, some were repeat sightings of previously recorded individuals). All but 1 of the sightings occurred within 90 km of the shoreline—the remaining sighting occurred ~140 km offshore (NMFS unpub. data). An offshore survey in March 2010 observed the birth of a right whale in waters 75 km off Jacksonville, Florida (Foley et al. 2011). Although habitat models predict that right whales are not likely to occur farther than 90 km from the shoreline (Gowan and Ortega-Ortiz 2015), the frequency with which right whales occur in offshore waters in the southeastern U.S. remains unclear. Visual and acoustic surveys have demonstrated the existence of seven areas where western North Atlantic right whales aggregate seasonally: the coastal waters of the southeastern U.S.; the Great South Channel; Jordan Basin; Georges Basin along the northeastern edge of Georges Bank; Cape Cod and Massachusetts Bays; the Bay of Fundy;

Figure 1. Distribution of sightings of known North Atlantic right whales, 2012-2016. Isobaths are the 100-m, 1000-m and 4000-m depth contours.


19

right whales correlated with satellite-derived sea-surface chlorophyll concentration (as a proxy for productivity), and calving rates correlated with chlorophyll concentration prior to gestation (Hlista et al. 2009). On a regional scale, observations of North Atlantic right whales correlate well with copepod concentrations (Pendleton et al. 2009). The available evidence suggests that at least some of the observed variability in the calving rates of North Atlantic right whales is related to variability in nutrition and possibly increased energy expenditures related to non-lethal entanglements (Rolland et al. 2016; van der Hoop 2017). An analysis of the age structure of this population suggests that it contains a smaller proportion of juvenile whales than expected (Hamilton et al. 1998; IWC 2001), which may reflect lowered recruitment and/or high juvenile mortality. Calf and perinatal mortality was estimated by Browning et al. (2010) to be between 17 and 45 animals during the period 1989 and 2003. In addition, it is possible that the apparently low reproductive rate is due in part to an unstable age structure or to reproductive dysfunction in some females. However, few data are available on either factor and senescence has not been documented for any baleen whale. The maximum net productivity rate is unknown for this stock. For purposes of this assessment, the maximum net productivity rate was assumed to be the default value of 0.04. This value is based on theoretical modeling showing that cetacean populations may not grow at rates much greater than 4% given the constraints of their reproductive life history (Barlow et al. 1995). Single year production has exceeded 0.04 in this population several times, but those outputs are not likely sustainable given the 3-year minimum interval required between successful calving events and the small fraction of reproductively active females. This is likely related to synchronous calving that can occur in capital breeders under variable environmental conditions. Hence, uncertainty exists as to whether the default value is representative of maximum net productivity for this stock, but it is unlikely that it is much higher than the default.

POTENTIAL BIOLOGICAL REMOVAL Potential biological removal (PBR) is the product of minimum population size, one-half the maximum net productivity rate and a recovery factor for endangered, depleted, threatened stocks, or stocks of unknown status relative to OSP (MMPA Sec. 3. 16 U.S.C. 1362; Wade and Angliss 1997). The recovery factor for right whales is 0.10 because this species is listed as endangered under the Endangered Species Act (ESA). The minimum population size is 445. The maximum productivity rate is 0.04, the default value for cetaceans. PBR for the Western Atlantic stock of the North Atlantic right whale is 0.9.

ANNUAL HUMAN-CAUSED SERIOUS INJURY AND MORTALITY For the period 2012 through 2016, the minimum rate of annual human-caused mortality and serious injury to right whales averaged 5.56 per year. This is derived from two components: 1) incidental fishery entanglement records at 5.15 per year, and 2) vessel strike records at 0.41 per year. Early analyses of the effectiveness of the ship strike rule were reported by Silber and Bettridge (2012). Recently, van der Hoop et al. (2015) concluded that large whale mortalities due to vessel strikes decreased inside active seasonal management areas (SMAs) and increased outside inactive SMAs. Analysis by Laist et al. (2014) incorporated an adjustment for drift around areas regulated under the ship strike rule and produced weak evidence that the rule was effective inside the SMAs. Although PBR analyses in this SAR reflect data collected through 2016, it should be noted that an additional 17 right whale mortalities were observed in 2017 (Daoust et al. 2017). This number exceeds the largest estimated mortality rate during the past 25 years. Further, despite the usual extensive survey effort, only 5 and 0 calves were detected in 2017 and 2018, respectively. Therefore, the decline in the right whale population will continue for at least an additional 2 years. Beginning with the 2001 Stock Assessment Report, Canadian records have been incorporated into the mortality and serious injury rates to reflect the effective range of this stock. It is important to stress that serious injury determinations are made based upon the best available information; these determinations may change with the availability of new information (Henry et al. in press). For the purposes of this report, discussion is limited to those records considered confirmed human-caused mortalities or serious injuries. Annual rates calculated from detected mortalities should be considered a low-biased accounting of human-caused mortality; they represent a definitive lower bound. Detections are haphazard, incomplete, and not the result of a designed sampling scheme. A key uncertainty is the fraction of the actual human-caused mortality represented by the detected serious injuries and mortalities. Research on small cetaceans has shown the actual number of deaths can be several times higher than that observed (Wells and Allen 2015; Williams et al. 2011). The methods of Pace et al. (2017) can be extended to produce estimates of annual mortality, and these estimates exceed or equal the number of detected serious injury and mortality (Figure 4). Another uncertainty is assigning many of the detected entanglements to country of origin. Gear recovered is often not adequately marked and whales have been known to carry gear for long periods of time before being detected.


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Figure 4. Time series of observed annual total serious injuries and mortalities (SI/M) versus estimated mortalities extending the methods from Pace et al. (2017). Note that before 2000, observed SI/M attributed to Canada were not included in stock assessment reports and may partially explain low numbers of observations during those years.

Background The details of a particular mortality or serious injury record often require a degree of interpretation (Moore et al. 2005). The assigned cause is based on the best judgment of the available data; additional information may result in revisions. When reviewing Table 1 below, several factors should be considered: 1) a vessel strike or entanglement may have occurred at some distance from the location where the animal is detected/reported; 2) the mortality or injury may involve multiple factors; for example, whales that have been both vessel struck and entangled are not uncommon; 3) the actual vessel or gear type/source is often uncertain; and 4) in entanglements, several types of gear may be involved. Further, the small population size and low annual reproductive rate of right whales suggest that human sources of mortality have a greater effect relative to population growth rates than for other whales. The principal factor believed to be retarding growth and recovery of the population is entanglement with fishing gear. Between 1970 and 1999, a total of 45 right whale mortalities was recorded (IWC 1999; Knowlton and Kraus 2001; Glass et al. 2009). Of these, 13 (28.9%) were neonates that were believed to have died from perinatal complications or other natural causes. Of the remainder, 16 (35.6%) resulted from vessel strikes, 3 (6.7%) were related to entanglement in fishing gear (in two cases lobster gear, and in one gillnet gear), and 13 (28.9%) were of unknown cause. At a minimum, therefore, 42.2% of the observed total for the period and 50% of the 32 non-calf deaths was attributable to human impacts (calves accounted for three deaths from ship strikes). Young animals, ages 0–4 years, are apparently the most impacted portion of the population (Kraus 1990). Finally, entanglement or minor vessel collisions may not kill an animal directly, but may weaken or otherwise affect it so that it is more likely to become vulnerable to further injury. Serious injury determinations for large whales commonly include animals carrying gear when these entanglements are constricting or appear to interfere with foraging (Henry et al. in press).

Fishery-Related Mortality and Serious Injury Not all mortalities are detected, but reports of known mortality and serious injury relative to PBR as well as total human impacts are contained in records maintained by the New England Aquarium and the NMFS Greater Atlantic and Southeast Regional Offices (Table 1). From 2012 through 2016, 28 of those examined records of mortality or serious injury (including records from both U.S. and Canadian waters, pro-rated to 26 using serious injury guidelines) involved entanglement or fishery interactions. For this time frame, the average reported mortality and serious injury to right whales due to fishery entanglement was 5.15 whales per year. Information from an entanglement event often does not include the detail necessary to assign the entanglements to a particular fishery or


EXHIBIT 8


August 2019 Scoping MeetingsDeveloping Modifications to the

Atlantic Large Whale Take Reduction PlanMaine, August 2019

Michael Asaro, PhD., [email protected] Lead, GAR Marine Mammal and Sea Turtle Team

Colleen Coogan, [email protected],GAR Take Reduction Team Coordinator

Marisa Trego, PhD, [email protected] Specialist

Chao Zou, PhD, [email protected]

Greater Atlantic Regional Fisheries Office


in 2010

in 2017

in 1990

NORTH ATLANTIC RIGHT WHALES ARE DECLINING

85% HAVE BEEN

ENTANGLEDAT LEAST ONCE

481

411

268

481

POPULATION IN DECLINE SINCE 2010

411WHALESESTIMATEDAugust 2019,Likely fewer than 400

95POTENTIALMOTHERSESTIMATEDADULT FEMALES

28KNOWNDEADJAN 2017 – AUG 2019

12CALVESBORN OVER LAST 3 SEASONS

Images collected under MMPA Research permit number 17355Photo Credit: NOAA/NEFSC/Christin Khan


RIGHT WHALE USE OF NORTHERN RANGE HAS INCREASED

Increased energetic costs of extended migrationContinued human impacts throughout rangeIncreased exposure to Canadian fisheries and vessel traffic

• Evidence of snow crab entanglement from 2013 fishing year.

• Substantial increase in right whale presence in Gulf of St. Lawrence since 2015 (Canadian Science Advisory Secretariat; Science Advisory Report 2019/028)

• High mortalities in Gulf of St. Lawrence:2015 (3), 2017 (12), 2019 (8), including shipstrikes and entanglements


TRENDS RELATED TO ENTANGLEMENT ARE INCREASINGCase 1:18-cv-00112-JEB Document 71-9 Filed 09/03/19 Page 5 of 6

U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 8

For example, in 2018, three right whale mortalities were documented, all showing signs of entanglement, all first seen in U.S. waters

• Gear retrieved from January mortality in Virginia – Canadian snow crab• No retrieved gear but clear indicators of pre-mortem entanglement in

• August (Martha’s Vineyard) or • October (> 100 miles east of Cape Cod)

UNCERTAINTY ABOUT ORIGINAL SITE OF ENTANGLEMENTSCase 1:18-cv-00112-JEB Document 71-9 Filed 09/03/19 Page 6 of 6

EXHIBIT 9


9/3/2019 2017-2019 North Atlantic Right Whale Unusual Mortality Event | NOAA Fisheries

https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2019-north-atlantic-right-whale-unusual-mortality-event 1/8

2017-2019 North Atlantic RightWhale Unusual Mortality EventSince June 7, 2017, elevated North Atlantic right whale (Eubalaena glacialis) mortalitieshave been documented, primarily in Canada and were declared an Unusual MortalityEvent.

Since June 7, 2017, elevated North Atlantic right whale (Eubalaena glacialis) mortalities have beendocumented, primarily in Canada and were declared an Unusual Mortality Event. In 2017, therewas a total of 17 confirmed dead stranded whales (12 in Canada; 5 in the United States) and in2018, three whales stranded in the United States. In 2019, eight whales have stranded in Canada.The current total mortalities for the UME is 28 dead stranded whales (20 in Canada; 8 in the UnitedStates).




North Atlantic Right Whale Causes of Death; U.S. and Canada

Year Month NARWID Sex

Locationfirstobserved

Preliminary Cause of Death

Canada

2017 June #3746 MGulf of StLawrence

Undetermined; could not be examined


Suspect blunt force trauma (vessel strike)


Undetermined; advance decomposition

Annual North Atlantic Right Whale Mortalities, 2012-2019, U.S. and Canada.







2017 June #3603 FGulf of StLawrence

Acute entanglement (gear present; anchored)




Probable blunt force trauma (vessel strike)

2017 July Unk MGulf of StLawrence

Probable blunt force trauma (vessel strike)

2017 July #2140 MGulf of StLawrence

Suspect blunt force trauma (vessel strike)

2017 July #2630 M Newfoundland Undetermined; could not be examined

2017 July Unk F Newfoundland Undetermined; could not be examined

2017 July #1911 F Newfoundland Undetermined; could not be examined

2017 September #4504 FGulf of StLawrence

Acute entanglement (gear present)

2019 June Wolverine MGulf of StLawrence

Pending

2019 JunePunctuation#1281

FGulf of StLawrence

Compatible with sharp force trauma (vessel strike)

2019 JuneComet#1514

MGulf of StLawrence

Highly compatible with blunt force trauma (vesselstrike)


Pending


Pending

2019 JuneClipper#3450

FGulf of StLawrence

Compatible with blunt force trauma (vessel strike)

2019 June Unk UGulf of StLawrence

Undetermined; not examined

2019 July #3421 MGulf of StLawrence

Pending

USA

2017 April #4694 FBarnstable,MA

Blunt force trauma (vessel strike)







2017 August Unk MMartha'sVineyard, MA

Probable entanglement

2017 August #2123 FCape Cod,MA (offshore)


2017 October Unk MNashawenaIsland, MA

Suspect entanglement

2017 November #2611 FMartha'sVineyard, MA

Undetermined; advance decomposition

2018 January #3893 FVirginiaBeach, VA(offshore)

Chronic entanglement (gear present)

2018 August Unk M Monomoy, MA Probable entanglement

2018 October Pending NANantucket,MA (offshore)

Probable entanglement




North Atlantic right whale stranding locations along the Atlantic coast in Canadian waters




North Atlantic right whale stranding locations along the Atlantic coast in U.S. waters.

Note: Graph represents confirmed mortalities reported in each country and does not always reflect the location ofthe injury or death of the animal. Carcasses may drift across national boundaries; therefore, a carcass may besighted or reported in one country even though the mortality occurred elsewhere. Species or stocks that migrateacross national boundaries often carry their illnesses, injuries, or exposures to toxins with them. For mortalitydeterminations in these species, transboundary collaboration is critical in determining the causes of injury, illness,and mortality for each animal.

Causes of the North Atlantic Right Whale UMEFull necropsy examinations have been conducted on 15 of the 26 whales and final results from theexaminations are pending. Necropsy results from seven of the Canadian whales from 2017 canbe found online.

As part of the UME investigation process, NOAA assembled an independent team of scientist tocoordinate with the Working Group on Marine Mammal Unusual Mortality Events to review the datacollected, sample stranded whales, and determine the next steps for the investigation. We arecontinuing to investigate these mortalities but preliminary findings support human interactions,




specifically vessel strikes or rope entanglements, as the cause of death for the majority of thewhales.

A dead right whale floating at the surface of the ocean

Report a StrandingThe most important step that the public can take to assist investigators is to immediately report anysightings of injured or stranded whales (dead or alive). In the United States, make a report by callingthe Greater Atlantic Marine Mammal Stranding Hotline at (866) 755-6622 or the Southeast MarineMammal Stranding Hotline at (877) 433-8299. In Canada, call the Marine Animal Response Societyat 1-866-567-6277 or the Quebec Marine Mammal Emergency Response Network at 1-877-722-5346. You can also contact the U.S. and Canadian Coast Guards on VHF Channel 16. Do notapproach injured or dead animals.

More InformationFrequent Questions: 2017 North Atlantic Right Whale UME

Fisheries and Oceans, Canada

Transport Canada




Marine Animal Rescue Society, Canada

Donate to the Unusual Mortality Event Contingency Fund

Unusual Mortality Events

Marine Mammal Health and Stranding Response Program

Marine Mammal Protection

Last updated by Office of Protected Resources on 08/29/2019


EXHIBIT 10


1

Kristen Monsell

From: Colleen Coogan - NOAA Federal <[email protected]>Sent: Friday, August 30, 2019 2:02 PMTo: _NMFS GAR ALWTRP membersSubject: Fwd: FW: MLA letter withdrawing from TRT near-consensus agreementAttachments: MLA TRT near consensus withdrawal_2019.08.30 FINAL.pdf

Good afternoon, Please see email and attachments from Patrice. I will be on leave next week, with little access to email but will catch up as soon as I return. I hope you all have a safe and enjoyable Labor Day weekend. Colleen ---------- Forwarded message --------- From: Patrice McCarron <[email protected]> Date: Fri, Aug 30, 2019 at 4:45 PM Subject: FW: MLA letter withdrawing from TRT near-consensus agreement To: Mike Asaro ([email protected]) <[email protected]>, Colleen Coogan ([email protected]) <[email protected]>

Mike and Colleen

Can you please forward the attached letter from MLA to members of the TRT.

Thank you.

Patrice

From: Patrice McCarron Sent: Friday, August 30, 2019 4:01 PM Subject: MLA letter withdrawing from TRT near-consensus agreement

Dear Mr. Oliver

Please find the attached letter from the Maine Lobstermen’s Association withdrawing support for the TRT near-consensus agreement due to serious flaws in the data presented to the TRT and in how the process was conducted. The MLA looks forward to working with the agency to resolve these issues.


2

Please be assured that the MLA remains committed to working with the agency to identify new whale protections for the Maine lobster fishery that accurately reflect the risk posed by this fishery.

I will send supporting documentation in a separate email due to file size.

Thank you.

Patrice

------------------------------------------------

Patrice McCarron

207-967-4555 (office) * 207-205-4544 (cell)

Maine Lobstermen's Association

203 Lafayette Center, Kennebunk, ME 04043

Not a member? Join today! www.mainelobstermen.org

Maine Lobstermen's Community Alliance

PO Box 315, Kennebunk, ME 04043

www.mlcalliance.org

-- Colleen Coogan Marine Mammal Take Reduction Team Coordinator NMFS, Greater Atlantic Region 978 281-9181


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CENTER FOR BIOLOGICAL ) DIVERSITY, et al., ) ) Civil Action Nos. 18-112 (JEB)

Plaintiffs, ) 18-283 (JEB) ) v. ) ) WILBUR ROSS, et al., ) )

Federal Defendants, and ) ) MAINE LOBSTERMEN’S ) ASSOCIATION, INC. and ) MASSACHUSETTS LOBSTERMEN’S ) ASSOCIATION, ) ) Defendant-Intervenors. ) )

[PROPOSED] ORDER DENYING DEFENDANTS’ MOTION TO STAY

Defendants in consolidated Case Numbers 1:18-cv-112 and 18-cv-283, Wilbur Ross (in

his official capacity as Secretary of Commerce), Chris Oliver (in his official capacity as

Assistant Administrator, NOAA Fisheries), and the National Marine Fisheries Service (NMFS),

have moved to stay this litigation. Plaintiffs Center for Biological Diversity, Defenders of

Wildlife, the Humane Society of the United States, and Conservation Law Foundation have

opposed.

Upon consideration of the relevant papers, evidence, and arguments, it is ORDERED that

Defendants’ Motion to Stay is DENIED.

Parties are FURTHER ORDERED to submit a joint proposed schedule to complete

summary judgment briefing within 7 days of this Order.


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DATED: ______________ _________________________ HON. JAMES E. BOASBERG United States District Judge


wilbur ross, et al. federal defendants...united states district court for the district of columbia...

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