United States Court of Appeals For the First Circuit

No. 21-1873

DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL LODGE 207; DAMON FAMILY LOBSTER COMPANY, INC.; FOX ISLAND LOBSTER COMPANY, LLC; FRANK THOMPSON,

Plaintiffs, Appellees,

v.

GINA M. RAIMONDO, in her official capacity as Secretary of the United States Department of Commerce; JANET COIT, in her official capacity as Assistant Administrator of the NOAA Fisheries; NATIONAL MARINE FISHERIES SERVICE,

Defendants, Appellants.

No. 21-1874

DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL LODGE 207; DAMON FAMILY LOBSTER COMPANY, INC.; FOX ISLAND LOBSTER COMPANY, LLC; FRANK THOMPSON,

Plaintiffs, Appellees.

v.

CENTER FOR BIOLOGICAL DIVERSITY; CONSERVATION LAW FOUNDATION, INC.; DEFENDERS OF WILDLIFE,

Intervenor-Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge] Before

Kayatta, Barron, and Gelpí, Circuit Judges.

Erika B. Kranz, Todd Kim, Assistant Attorney General, Andrew C. Mergen, Alison C. Finnegan, and Taylor A. Mayhall on brief for appellants Gina M. Raimondo, Janet Coit, and National Marine Fisheries Service. Kristen Monsell, Erika A. Fuller, and Jane P. Davenport on brief for intervenor-appellants Center for Biological Diversity, Conservation Law Foundation, Inc., and Defenders of Wildlife. Jay P. McCloskey, Paula D. Silsby, Thimi R. Mina, Alfred C. Frawley IV, and McCloskey, Mina, Cunniff & Frawley, LLC on brief for appellees District 4 Lodge of the International Association of Machinists and Aerospace Workers Local Lodge 207, Damon Family Lobster Company, Inc., Fox Island Lobster Company, LLC, and Frank Thompson. Ryan P. Steen, Stoel Rives LLP, Mary Anne Mason, General Counsel, Maine Lobsterman's Association, Jane C. Luxton, Kip J. Adams, and Lewis Brisbois Bisgaard & Smith LLP on brief for Maine Lobsterman's Association, amicus curiae.

November 16, 2021 KAYATTA, Circuit Judge. This case pits the Maine lobster

industry against a federal environmental agency seeking to save

the endangered North Atlantic right whale from extinction. Earlier

this year, the National Marine Fisheries Service (the "Agency")

issued a rule barring, from October to January each year, the most

frequently employed methods of lobstering in a roughly 967 square

mile area of the Atlantic Ocean thirty or so nautical miles off

the Maine coast. The Agency implemented this new seasonal closure

to reduce the risk that a right whale would become entangled in

the ropes connecting lobster traps to buoys. Prior to the closure

going into effect, several individuals and an organization

affected by the closure joined as plaintiffs and asked the district

court to postpone the enforcement of the new rule until that court

could finally decide whether the new rule is lawful. The

plaintiffs' preliminary request required the district court to

predict how likely it is to find the new rule unlawful at the end

of the case and to consider now what harms might result in the

interim should an injunction either be granted or denied. Agreeing

with the plaintiffs, the district court put the new rule on ice.

The government then appealed. It argues on the merits

that the district court should not have issued its preliminary

injunction. By separate motion, the government also asks us to

issue a stay of the district court order so that the new seasonal

closure would go into effect while the appeal proceeds.

- 3 - For the following reasons, we grant the government's

motion. As we will explain, the district court misapprehended the

record and over-stepped its role in rejecting the judgments of the

agency that Congress has charged with protecting endangered marine

mammals. And, while there are serious stakes on both sides,

Congress has placed its thumb on the scale for the whales.

I.

Congress enacted the Marine Mammal Protection Act nearly

fifty years ago to ensure that marine mammals -- like the North

Atlantic right whale -- are not "permitted to diminish beyond the

point at which they cease to be a significant functioning element

in the ecosystem of which they are a part."

(2).

In 2019, the Agency estimated there were no more than 368 right

whales left in the ocean, and the Agency has determined that no

more than eight right whales, on average, can be "taken" every ten

years if they are to reach their optimum sustainable population.1

In other words, even one additional death a year increases the

odds that the right whale will go extinct.

Entanglement in trap lines is a leading cause of serious

injury and death in right whales, who otherwise live on average

for four to seven decades. Nat'l Marine Fisheries Serv.,

1 "Take" is a term of art meaning, in brief, an action that captures, kills, or has the potential to injure a marine mammal, or one that has the potential to disrupt its behavioral pattern.

(13), (18).

- 4 - Biological Opinion (BiOp) 80, 136 (May 27, 2021). The Agency

estimates that just under five right whales per year suffer serious

injury or death due to entanglement in federally regulated

fisheries.

Because of the critical nature of the right whale's

population levels, there has long been federal regulation of

certain fisheries aimed at reducing whale buoy and line

entanglement. Most recently, an unexplained uptick in deaths in

20172 prompted the Agency to act anew. It reconvened the Atlantic

Large Whale Take Reduction Team -- which includes members of the

fishing and lobstering industries -- to propose amendments to the

Atlantic Large Whale Take Reduction Plan. The Team, and later the

Agency, considered several types of actions, including certain

restrictions of fishing gear -- like requiring weaker lines -- and

seasonal closure of particularly risky fishing areas.

In deciding which actions to take, the Agency used a

peer-reviewed "Decision Support Tool" (the "model"). The model

identifies so-called "hotspots" where right whales are most in

danger based on where vertical buoy lines are likely to be, how

strong those lines are likely to be, and where whales are likely

to be. Nat'l Marine Fisheries Serv., Final Environmental Impact

2 In 2017, seventeen right whale deaths were documented, and new information demonstrated a downward trend in the species' population since 2010.

- 5 - Statement (FEIS) 73–74 (June 2021). An area may be a hotspot even

if only a few whales are predicted to be there if there are a

plethora of strong vertical fishing lines. The Agency employed

these inputs "because entanglement risk only exists when lines are

present, whales are present, and the lines pose a risk to whales."

Taking of Marine Mammals Incidental to Commercial Fishing

Operations; Atlantic Large Whale Take Reduction Plan Regulations

("Final Rule"),

, 51,991 (Sept. 17, 2021).

Thus, "if any of these three factors are not present, the risk of

entanglement [from the model] is zero."

Based on this model, one of the actions the Agency

proposed was to restrict fishing with buoy lines from October 18

to January 31 in a roughly 967 square mile area of the Atlantic

Ocean thirty or so nautical miles off the Maine coast ("LMA 1

restricted area"). Representatives of the lobster industry issued

comments questioning the inputs of the model, whether any whales

are likely to enter that area, and whether there had been any

concrete data of a right whale being injured by buoy lines in that

area. On August 31, 2021, the Agency issued a final rule in which

it responded to these comments but nevertheless retained the

seasonal closure, as set to go into effect on October 18.

Plaintiffs -- individual lobster harvesters and a

lobstering union -- sued the Agency on September 27, 2021, claiming

that the closure of the restricted area was arbitrary and

- 6 - capricious.3 A week later, the plaintiffs moved for a temporary

restraining order and preliminary injunction, seeking to block the

seasonal closure from going into effect. After briefing and a

hearing, the district court agreed that the plaintiffs are likely

to succeed on the merits. It found that the Agency likely acted

arbitrarily and capriciously by closing the fishery "based on what

appears to be a markedly thin statistical modeling methodology,"

which "ignored . . . whether right whales actually aggregate in

the" restricted area. It concluded that while the Agency has the

authority to impose the seasonal closure, it could not do so until

"traditional" evidence "either substantiate[s] or contradict[s]

its modeling effort."

The district court then found that the plaintiffs met

their burden (for preliminary relief) to show irreparable injury

because their compliance cost is "significant" and because the

rule would result in the "permanent loss of their existing fishing

grounds." Finally, the district court concluded that the public

interest was on the plaintiffs' side -- despite the fact that it

generally "tips heavily in favor of protected species," Strahan v.

3 Once plaintiffs sued the Agency, several conservation groups with an interest in protecting the right whale intervened. Those groups -- Conservation Law Foundation, Defenders of Wildlife, and Center for Biological Diversity -- are parties to this appeal and have filed their own motion for a stay. Given our disposition of the Agency's motion, we will deny the conservation groups' motion as moot.

- 7 - Coxe,

, 171 (1st Cir. 1997) -- because "there is an

overriding public interest in insisting on orderly and

epistemically sound rulemaking that members of the public have

reason to believe is grounded in reality." Based on those

findings, the district court enjoined the seasonal closure from

going into effect two days before it was set to do so.

The Agency appealed and moved the district court for a

stay pending appeal, in essence asking the district court to permit

the closure to go into effect while it sought review of the

preliminary injunction order. The district court denied that

motion two weeks later. The same day, the Agency moved for similar

relief in this court. After a review of the record and a

consideration of the stay factors, we now grant the Agency's

motion.

II.

In ruling on a motion for a stay pending appeal, we

consider "(1) [w]hether the stay applicant has made a strong

showing that it is likely to succeed on the merits, (2) whether

the applicant will be irreparably injured absent a stay,

(3) whether [the] issuance of the stay will substantially injure

the other parties interested in the proceeding, and (4) where the

public interest lies." Common Cause R.I. v. Gorbea,

(1st Cir. 2020) (second alteration in original) (quoting Nken

- 8 - v. Holder,

(2009)). "The first two factors 'are

the most critical.'"

(quoting Nken,

).

A.

Determining the likelihood of the Agency's success in

this appeal requires us to determine the likelihood that the

district court itself erred in issuing a preliminary injunction.

To the extent the district court's ruling rested on findings of

fact, we defer to those findings absent clear error; we review any

questions of law de novo, without deference. Swarovski

Aktiengesellschaft v. Bldg. No. 19, Inc.,

(1st

Cir. 2013).

We begin with the clear policy choices made by Congress

in instructing the Agency to protect right whales, even if that

protection causes harm to commercial fishing operations. We do

not make policy determinations; the branches accountable to voters

do that. Rather, we serve as a backstop to ensure an executive

agency does not act arbitrarily and capriciously or not in

accordance with law.

(2)(A).

Two statutes call for the Agency to take swift action to

protect the endangered right whale: Section 7 of the Endangered

Species Act (ESA) requires the Agency to ensure that its fishing

licenses are "not likely to jeopardize the continued existence of

any endangered species."

(a)(2). The Marine

Mammal Protection Act (MMPA), in turn, makes it "the immediate

- 9 - goal that the incidental mortality or serious injury of marine

mammals occurring in the course of commercial fishing operations

be reduced to insignificant levels approaching a zero mortality

and serious injury rate" and requires the Agency to "develop and

implement a take reduction plan," whose "immediate goal" is "to

reduce, within 6 months of its implementation, the incidental

mortality or serious injury of marine mammals incidentally taken

in the course of commercial fishing operations to levels less than

the potential biological removal level established for that

stock."

(a)(1), (f)(2), (f)(5). Indeed, the MMPA

requires the Agency "to assist in the recovery or prevent the

depletion of" endangered marine mammals that "interact[] with

commercial fisheries."

§ 1387(f)(1).

The potential biological removal (PBR) level for the

right whale is currently 0.8, which means that the removal of more

than eight individuals every ten years (i.e., an average of 0.8 per

year) threatens the species' ability to reach its optimal

sustainable population level.4 Of all the large whales, only the

right whale population consistently experiences annual takes in

excess of its PBR level. In fact, an "annual average of five

entanglement-related mortalities and serious injuries were

4The PBR levels of marine mammals are also determined by the Agency, and we note that plaintiffs do not challenge this number here.

- 10 - documented from 2009 through 2018." Final Rule, 86 Fed. Reg. at

51,971. The discrepancy between annual right whale deaths and the

species' PBR level required the Agency to act.

(f)(7)(F). And, because the trend is "toward species

extinction," the licensing of the federal fisheries for lobster

harvesting implicates the ESA, in which Congress opted as a matter

of policy to require the Agency to act "whatever the cost." Tenn.

Valley Auth. v. Hill,

(1978) (finding that the

ESA embodies Congress's "plain intent" to "halt and reverse the

trend toward species extinction, whatever the cost" (emphasis

added)); see also

(6) (requiring the Agency to

ensure endangered marine mammals, including the right while, are

"protected and encouraged to develop to the greatest extent

feasible").

Whenever an administrative agency acts, it must follow

the applicable administrative rules of procedure. See

(detailing requirements for agency rulemaking);

(f) (detailing requirements for agency action when an

endangered marine mammal is being taken at a rate higher than its

PBR level); see also BiOp at 1 (explaining that section 7 of the

ESA requires the Agency to "conduct intra-service consultation"

when it is "proposing an action that may affect listed species").

Here, though, the plaintiffs offer no reason to question the

Agency's compliance with these procedural requirements. Most

- 11 - importantly, the Agency proposed and explained its new rule,

solicited public comment on the proposed rule, and considered those

comments -- including all comments from participants or

representatives of the lobster industry -- before finally issuing

the rule.

The district court (in passing) and the plaintiffs on

appeal complain that the seasonal-closure regulation did not go

through a collaborative process with the Atlantic Large Whale Take

Reduction Team (the "Team"), but no party points us to any

requirement that every aspect of a take plan be discussed by the

Team. Rather, the Team is an advisory body. As the Agency

explained, "While the [Team] provides recommendations, and [the

Agency] makes every effort to incorporate those recommendations,

it is ultimately [the Agency's] responsibility to meet the mandates

of the MMPA." Record of Decision for the FEIS (ROD) 24 (Aug. 30,

2021); see also

(f)(7)(B)(i) (permitting the

Agency to make "changes . . . with an explanation of the reasons"

to any plan drafted by the Team);

§ 1387(f)(7)(B)(ii)

(requiring the Agency to publish its own "proposed take reduction

plan and implementing regulations" if the Team "does not submit a

draft plan . . . within 6 months").

With Congress having thus mandated action to protect the

right whale from commercial fishing, and with plaintiffs pointing

to no procedural failure by the Agency in deciding what action to

- 12 - take, the district court had only a narrow role to play. A court

can set aside an otherwise proper agency action if it is arbitrary

and capricious or if it is not based on substantial evidence.5

(2)(A), (E). The district court found that plaintiffs

had made a showing that the Agency rule in this case was likely

arbitrary and capricious. In so doing, the district court claimed

that the Agency's action fell short because it failed to consider

what the district court decreed was an "important aspect of the

problem," see Upper Blackstone Water Pollution Abatement Dist. v.

EPA,

(1st Cir. 2012) (quoting Motor Vehicle Mfrs.

Ass'n v. State Farm Mut. Auto. Ins. Co.,

(1983)),

namely "whether right whales actually aggregate in the LMA 1

Restricted Area." The court explained that that the Agency

"predicts the presence of right whales during the LMA 1 closure

period in spring" and that "the warming of the Gulf of Maine has

shifted right whales 'south of New England and Long Island in the

fall and winter.'" (quoting BiOp at 187). From those observations,

the court concluded that the Agency likely did not time the closure

to coincide with the presence of whales.

5 The Supreme Court "has described the APA court/agency 'substantial evidence' standard as requiring a court to ask whether a 'reasonable mind might accept' a particular evidentiary record as 'adequate to support a conclusion.'" Dickinson v. Zurko,

(1999) (quoting Consol. Edison Co. v. NLRB,

(1938)).

- 13 - That reasoning constituted a fundamental misapprehension

of the Agency's analysis. Whale death by entanglement requires

the intersection of two objects: a line and a whale. As the Agency

explained, and as its model assumes, the risk of entanglement

therefore varies based on the number of lines and the number of

whales in a given area. A large number of whales can certainly

pose a significant risk in the presence of even relatively few

lines, but just a few whales can also pose a significant risk in

the presence of a large number of lines.

This type of scenario -- few whales/many lines -- was

just what the Agency confronted in the LMA 1 restricted area during

the winter months. Its peer reviewed "co-occurrence model"

projected both that some right whales would be present in the

winter months, FEIS at 81, and that the proliferation of trap lines

would pose a substantial risk to those whales, see FEIS at 73, 78,

81. So the district court's central criticism based on the fact

that the data showed (as the Agency itself pointed out) that whales

only aggregated in the area at other times provides no basis for

rejecting the Agency's findings.

The district court also criticized the agency's use of

its "co-occurrence model" absent a better explanation of the

inputs, and the court made no bones about the fact that it would

prefer to have -- and indeed require -- "traditional," concrete

evidence of right whales within the restricted area. But an agency

- 14 - may use a model in determining what actions will likely achieve

its goals. Scientists regularly use models to understand complex

interactions and predict likely future occurrences (like, for

example, the weather in two days). The use of a model is reasonable

where it reflects "the best information available when [the agency]

began its analysis," and where it has "check[ed] the assumptions

of those models as new information became available." Village of

Bensenville v. FAA,

(D.C. Cir. 2006). The Agency

appears to have done both here. The model included "[d]ata from

recent gliders operating in offshore Maine waters during December

and January in 2018 and 2019 [that] detected the presence of right

whales, with positive detections within an area in the season and

within the boundaries selected" with the model, FEIS at 81, and

the Agency considered "supplementary acoustic data" on top of the

"data [it] already had on predicted whale density in this area

according to the new 2010 to 2018 model" when developing the

restricted area, ROD at 22. In addition, the Agency went through

an iterative process to narrow the restricted area to the riskiest

area. FEIS at 81 ("The final borders around these areas were drawn

through an iterative process, testing the risk reduction offered

in each version with the [co-occurrence model] and selecting an

area that is robust to annual shifts in predicted whale

distribution without being larger than is necessary.").

- 15 - The Agency also included in the model the new data

regarding a post-2010 shift in right whale migrating patterns, yet

the model "still showed substantial risk reduction occurring in

these hotspots suggesting these areas remain relatively important

between 2010 and 2018." FEIS at 81. And it obtained favorable,

independent peer review of the model by knowledgeable scientists.

at 74–75. Thus, the Agency did everything it was supposed to

do when using a model: It relied on the best evidence it had

available and updated the inputs as new information emerged.

Village of Bensenville,

. Accordingly, the Agency's

use of the model very likely was not arbitrary and capricious, and

the resulting regulation appears to be supported by substantial

evidence. See United States v. Carlo Bianchi & Co.,

(1963) (explaining that the "'substantial evidence' . . .

standard goes to the reasonableness of what the agency did on the

basis of the evidence before it, for a decision may be supported

by substantial evidence even though it could be refuted by other

evidence that was not presented to the decision-making body").

The district court also faulted the Agency for simply

not waiting for further "concrete" evidence of whales in the area.

But the Agency persuades us, at least preliminarily, that Congress

did not require the Agency to wait for more data, much less to

wait until the whales are swimming among an aggregation of life-

threatening lines. See

(f)(7) (requiring quick

- 16 - action when "the human-caused mortality and serious injury [of the

right whale] is estimated to be equal to or greater than

[its] potential biological removal level . . . and [the

whale] interacts with a fishery."); see also Brower v. Evans,

(9th Cir. 2001) ("Scientific findings in marine

mammal conservation area are often necessarily made from

incomplete or imperfect information."). See generally FCC v.

Prometheus Radio Project,

, 1160 (2021) ("[It] is

not unusual in day-to-day agency decisionmaking within the

Executive Branch" for an agency to lack "perfect empirical or

statistical data.").

The district court expressed concern that, by

considering both the density of whales in an area and the density

of dangerous buoy lines, the model might "simply use[] math in a

manner that makes a reduction in line density appear statistically

meaningful even in the absence of passing whales." But the Agency

explained that was not how the model worked. Final Rule, 86 Fed.

Reg. at 51,991 ("It is appropriate for the threat model to be

equally weighted with line and whale density because entanglement

risk only exists when lines are present, whales are present, and

the lines pose a risk to whales. If any of these three factors

are not present, the risk of entanglement is zero." (emphasis

added)).

- 17 - Finally, the district court faulted the Agency because

the "available record of known large whale entanglements . . .

between 2010 and 2019 offers little to support outright closure of

LMA 1," as none of the known cases have come from the Gulf of

Maine. But this conclusion overlooks the problem confronting the

Agency. Scientists cannot trace most known entanglements to

specific fisheries. BiOp at 216 ("Assignment of an observed

entanglement event to a specific fishery or country of origin is

rarely possible."); Final Rule, 86 Fed. Reg. at 51,976 ("Out of

approximately 1.24 million buoy lines within the Northeast waters

from Rhode Island to Maine, we estimate that 72 percent of buoy

lines were unmarked under current [take reduction plan] gear

marking guidelines although that percentage was reduced when Maine

required gear marks on lobster trap buoy lines beginning in

September 2020."). And, because many whale carcasses are never

recovered, there are even more entanglements that are unknown.

BiOp at 212 ("Some whale mortalities may never be observed; thus,

the annual observed entanglement-related mortalities are likely

less than the actual number of entanglement-related mortalities

occurring."); see also FEIS at 55–56 ("[M]any entanglements are

never seen by humans, even when seen there is often no gear present

on whales showing scars, wounds and injuries clearly caused by

entanglement, gear cannot always be recovered from those whales

that are seen entangled, and even when gear is recovered, it can

- 18 - rarely be identified to a source fishery, and even more rarely to

a precise fishing location. . . . [T]herefore, most entanglement

related mortality and serious injury are unassigned.").

Accordingly, the lack of a specific case of entanglement

attributable to a given area does not mean none have happened in

that area or that there is no risk one will happen there in the

future. That is precisely why the Agency developed the model and

subjected its key inputs to review and comment. And the result

accords with common sense: Entanglements are a function of whales

swimming near lines, with the likelihood of a death increasing as

the number of either increases.

None of this is to discount entirely the district court's

correct observation that the modeling employed by the Agency, in

several important instances, relied on estimates of uncertain

events (such as entanglement risks in given areas), rather than

hard, verifiable numbers. We see no scientific basis, though, for

categorically rejecting an agency's use of well-considered

estimates. See generally H.C. von Baeyer, The Fermi Solution:

Essays on Science 3–12 (1993). Importantly, the Agency subjected

its estimates to peer review and, as we have discussed, supra, did

indeed explain how its estimates comported with and were derived

from the hard data that was available.

Trying to leverage the case for demanding more hard data

(and perhaps to undercut the Agency's case for irreparable harm),

- 19 - the plaintiffs have asked that we go outside the record to consider

the acoustic data from a glider mission that occurred in

October 2021, which did not find evidence of right whales near the

restricted area. They claim that this undermines the Agency's

model. We take the plaintiffs' invitation to look at recent

acoustic data, but find it cuts the other way. More recent

acoustic data posted on the NOAA website shows just what the Agency

modeling predicted: right whale acoustics in and around the LMA 1

restricted area. See NOAA, Right Whale Sighting Advisory System,

https://apps-nefsc.fisheries.noaa.gov/psb/surveys/Mapperiframe

WithText.html (last accessed Nov. 16, 2021). These data

illustrate the benefits of the Agency's decision to act on the

basis of its model rather than simply assume that no whales are

imperiled in the LMA-1 restricted area during the winter months.

On the whole, the Agency has made a strong showing of

likelihood of success on the merits.

B.

We next turn our attention to the harms that may be

suffered depending on whether the closure is enjoined during this

appeal. As a practical matter, this discussion also addresses to

the extent necessary the balance of equities and the public

interest.

- 20 - 1.

"[A]ny time a [government] is enjoined by a court from

effectuating statutes enacted by representatives of its people, it

suffers a form of irreparable injury." Maryland v. King,

(2012) (Roberts, C.J., in chambers) (second alteration

added) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,

(1977) (Rehnquist, J., in chambers)); see also

Thompson v. DeWine,

, 619 (6th Cir. 2020); Org. for

Black Struggle v. Ashcroft,

(8th Cir. 2020);

N.M. Dep't of Game & Fish v. U.S. Dep't of the Interior,

, 1254–55 (10th Cir. 2017); Planned Parenthood of Greater Tex.

Surgical Health Servs. v. Abbott,

(5th Cir.

2013).

Here, moreover, the enjoined agency action is aimed at

effectuating a congressional command to avoid licensing activity

that may itself cause irreparable harm: the extinction of a marine

mammal species. Right whales appear to have been killed in recent

years by entanglement at a rate that will lead to their extinction.

The Agency rule is intended to take a major, but not yet

sufficient, step in reducing those deaths. The Agency's model

estimates that the new rule, of which the seasonal ban in the LMA-

1 restricted area is a part, will reduce deaths by entanglement by

60%, to an annual average of 2.69 whales. Compare N. Atl. Right

Whale Conservation Framework, BiOp App'x A at 478 (explaining that

- 21 - the 2021 rulemaking is "focused on 60% reduction in right whale

[takes] incidental to the American lobster and Jonah crab trap/pot

fisheries. In federal waters, this action reduces [takes] from

entanglement, on average annually, to 2.69."), with FEIS at 76

tbl.3.1 (labeling the 60% as "risk reduction").6 The seasonal ban

at issue here accounts for over 10% of that reduction, which would

seem to approximate roughly one whale saved every three or four

years. See ROD at 21. While the risk reduction attributable to

the challenged seasonal closure seems small -- 6.6% -- it is an

important part of a larger, interrelated regulatory scheme. As

the Agency explained, "[i]ndividual risk reduction associated with

one measure is not as accurate as the combined risk reduction of

measures implemented together because it does not account for

changes in line numbers or distribution associated with other

measures nearby." ROD at 21. Thus, "[w]ithout this area, the

[regulatory rule] would likely not meet the minimum risk reduction

target needed to reduce mortality and serious injury of right

whales below PBR."

On top of that, the 2021 Rule is just the

first step in a 10-year plan aimed at trying to turn the trajectory

of the right whale around. See, e.g.,

at 59–60 (explaining

6 The percentage rises to 69% if action already taken to restrict harvesting in the ocean off of Massachusetts is taken into consideration. Even that percentage falls short of the Agency's "upper target" of 80%, and short of what the Agency expects will be needed to lower the annual deaths below the PBR more quickly. FEIS at 5.

- 22 - that it "may require up to 92 percent . . . to reduce actual

estimated mortality and serious injury below PBR," given "recent

mortality conditions").

2.

On the other hand, there is the harm that will befall

the plaintiffs should the ban apply. One would think that harm

would be much easier to quantify. As discussed, the Agency

estimated that this seasonal closure would impose costs between

roughly $635,000 and $1.25 million.7 Plaintiffs in their briefs

challenge that estimate. But the evidence backing that challenge

is, to say the least, sketchy. It consists of an affidavit

submitted not by any plaintiff, but by a third party who claims

that one plaintiff told her that the seasonal ban will cost his

business $5 million in revenue (it is unclear whether this is

annually or over the life of the closure), while the other

plaintiff told her that the ban would reduce his company's lobster

haul by 1–1.3 million pounds. Olsen Decl. ¶ 17. Neither

individual plaintiff backs up these numbers with any evidence at

all, and neither the plaintiffs nor even their third-party, hearsay

proxy offers any calculations to support these numbers. No witness

claims that any plaintiff will go out of business as a result of

7The district court mistakenly relied on the Agency's estimation of the annual cost of compliance for the entire rulemaking -- $9.8–19.2 million -- which covers much more than the seasonal closure challenged here.

- 23 - the plan. Nor is there any evidence in the record to support the

district court's statements suggesting that the new rule will cause

a permanent loss of plaintiff's formal or informal rights to fish

in the closed area even after a possible reopening, if and when

the closure is lifted in coming years.

That being said, even taking just the Agency's

estimates, it is fair to infer that a financial loss of a

relatively small percentage to the industry as a whole will be

borne primarily by those who set traps annually in the restricted

area. And as such we do not doubt that it presents a major

financial hardship for those individuals.

3.

The difficult question, then, is how does one balance

that increased risk of impeding Congress's aims and increasing

right whale fatality against the certain risk of economic harm to

the plaintiffs? In this instance, we answer that question by

looking to Congress for guidance. See Strahan, 127 F.3d at 171;

see also Tenn. Valley Auth.,

(finding that the ESA

embodies Congress's "plain intent . . . to halt and reverse the

trend toward species extinction, whatever the cost").

The plaintiffs identify no case in which we have

permitted an injunction to stand against the government's

authority to implement duly enacted laws, notwithstanding its

strong likelihood of success, let alone in a case in which the

- 24 - laws the government seeks to implement are aimed at the protection

of an endangered species and when the only alleged injury is of an

economic kind. See Strahan, 127 F.3d at 171 ("Under the ESA,

however, the balancing and public interest prongs have been

answered by Congress's determination that the 'balance of

hardships and the public interest tips heavily in favor of

protected species.'" (quoting Nat'l Wildlife Fed'n v. Burlington

N. R.R.,

(9th Cir. 1994))); Water Keeper All. v.

U.S. Dep't of Defense,

(1st Cir. 2001)

(differentiating Strahan on the grounds that "the harm asserted by

the navy implicates national security and therefore deserves

greater weight than the economic harm at issue in Strahan").

In this unusual case, our consideration of the competing

harms is also informed by our assessment of the likely outcome of

this litigation. As we have explained, it is likely that the

Agency ruling at issue here will be sustained given the deference

that a court must accord to executive agencies carrying out

congressional mandates. In that event, if any whales are lost --

or presumed lost -- because the ban was stayed, the Agency may

need to modify its actions going forward to make up for what it

had expected to be gains made this year. See BiOp at 7. Any such

actions could operate more harshly on harvesters by having to

achieve the same aggregate results in fewer years. In this

- 25 - respect, prevailing on the stay could cause lobster harvesters

additional harm.

For all of these reasons, while recognizing the burden

placed on the plaintiffs by the Agency's ruling, we find that

leaving the injunction in place during the course of this appeal

will likely cause irreparable harm in the form of preventing a

federal agency from undertaking its congressionally assigned task

of assuring the right whales are protected from a critical risk of

death. And in so requiring, Congress has effectively declared the

public interest and weighed the equities in accord with the balance

struck by the Agency. Strahan, 127 F.3d at 171. Whether the

statutory framework that requires this result should be changed is

up to Congress, not the courts.

III.

For the foregoing reasons, the Agency's motion for a

stay pending appeal is granted, and, consequently, the

intervenors' parallel motion is denied as moot.

While retaining jurisdiction over the appeal of the

preliminary injunction on the merits, we remand to the district

court to resolve, if necessary, any disputes concerning the prompt

removal of the banned gear from the LMA-1 restricted area. Given

the already lost time and the short period remaining for the

seasonal closure, we encourage the parties to act promptly.

- 26 -