United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
by the continued decline in the population of the North
Atlantic right whale, four environmental and conservation
groups have brought these two consolidated cases seeking to
reverse that trend. They do so by challenging the National
Marine Fisheries Service's oversight and authorization of
the American lobster fishery, an industry Plaintiffs contend
contributes heavily to the whale's demise. Specifically,
Plaintiffs bring suit against the Secretary of Commerce,
NMFS, and the Assistant Administrator for Fisheries at the
National Oceanic and Atmospheric Administration, alleging
that these Defendants have violated the Administrative
Procedure Act, the Marine Mammal Protection Act, and the
Endangered Species Act.
currently seek discovery and the admission of extra-record
evidence pursuant to their two ESA counts. Defendants counter
that such materials should not be considered by the Court,
contending that all of Plaintiffs' claims must be
examined solely on the basis of the current administrative
record. The Court attempted to assist the parties in reaching
a compromise on this issue, but apparently to no avail, as
they continue to hold fast to their respective positions.
See ECF No. 40 (Status Report).
forced to address the merits of the discovery dispute, the
Court concludes that while Plaintiffs' two APA-based
counts are confined to the record, evaluation of the two ESA
counts may be based on evidence beyond that scope. It will,
accordingly, grant Plaintiffs' Motion for Discovery.
the facts underlying this case have been described in depth
in this Court's prior Opinion, see Ctr. for
Biological Diversity v. Ross, 310 F.Supp.3d 119 (D.D.C.
2018), and most are not relevant to the discovery question
presented here. A brief stage-setting is all that is
statutes - the Endangered Species Act, 16 U.S.C. § 1531
et seq., and the Marine Mammal Protection Act, 16
U.S.C. § 1361 et seq. - seek to protect species
in danger of extinction, such as the right whale. The
Secretary of Commerce is responsible for administering and
enforcing the statutes. For most marine species, including
the right whale, the Secretary has delegated this
responsibility to the National Marine Fisheries Service, a
line office within the National Oceanic and Atmospheric
Administration, which itself sits in the Department of
Commerce. See 50 C.F.R. § 402.01(b).
order to determine the effects of the American lobster
fishery on threatened and endangered species, NMFS must
prepare biological opinions (BiOps) stating whether the
proposed action is likely to jeopardize listed species or
their habitat. See 16 U.S.C. § 1536(b); 50
C.F.R. § 402.14; CBD Compl., ¶¶ 90-91. In
2014, the Agency issued a BiOp to analyze the effects on the
North Atlantic right whale. Id, ¶ 98. The
opinion estimated that right-whale entanglements from the
lobster fishery would be unlikely to increase above 3.25 per
year and concluded that the fishery does not threaten the
survival of the whale. Id, ¶¶ 102-04.
January 2018, the Center for Biological Diversity, Defenders
of Wildlife, and the Humane Society of the United States
brought suit, alleging that agency actions, including the
2014 BiOp, do not comply with the ESA, the MMPA, or the
Administrative Procedure Act. Id., ¶ 1. The
following month, the Conservation Law Foundation followed
suit by filing a Complaint with substantially similar claims
and requests for relief. See CLF Compl. Together,
Plaintiffs set forth four causes of action alleging that
Defendants are falling short in their duties to protect the
right whale. See Mot. at 1. Their first and fourth
counts arise under the APA, alleging that the 2014 BiOp
regarding the authorization and management of the lobster
fishery and its continued authorization under the MMPA are
arbitrary, capricious, and not in accordance with the law.
See CBD Compl., ¶¶ 117-125, 135-39; CLF
Compl., ¶¶ 118-126, 140-48.
second and third counts, by contrast, relate to
Defendants' “mandatory substantive obligations
under the ESA.” Mot. at 1. Specifically, Plaintiffs
contend that Defendants are violating their ongoing duty
under ESA § 7 to ensure against jeopardy of endangered
right whales and their obligation under § 9 of the Act
to prevent unauthorized “take” of the cetaceans.
See CBD Compl., ¶¶ 126-34; CLF Compl.,
¶¶ 128-32, 134-39. Both of these claims are brought
pursuant to the “citizen-suit provision” of the
ESA, which provides that any individual may bring a civil
suit “to enjoin any person, including the United States
and any other governmental instrumentality or agency . . .
who is alleged to be in violation of any provision of this
[Act] or regulation issued under the authority
thereof.” 16 U.S.C. § 1540(g)(1)(A). As relief,
Plaintiffs seek to compel the Government to comply with its
substantive duties to avoid jeopardy and to refrain from
committing unauthorized take. In pursuit of these ends, they
seek declaratory and injunctive relief, including an order
directing Defendants to implement mitigation measures to
protect the whales from entanglements in lobster gear.
See CBD Compl. at 32; CLF Compl. At 38-39.
8, 2018, Plaintiffs filed a Joint Motion on the Scope of
Review, requesting that the court permit discovery on their
two ESA claims. In an attempt to narrow or resolve the
dispute, the Court - as is its practice in non-APA cases -
held a conference call and a status hearing. See
Minute Orders of July 19, 2018 & Sept. 5, 2018. Its
efforts did not bear fruit. See Status Report of
Sept. 18, 2018.
sides agree, the Court need not address Plaintiffs' APA
and MMPA claims, the adjudication of which is confined to the
administrative record. See Mot. at 3 n.2, 7. Where
the sides part ways, however, is over whether Plaintiffs are
entitled to discovery on the citizen-suit ESA counts. Because
their Motion is in large part based upon the specific
provisions of the ESA under which those counts arise -
namely, §§ 7 and 9 - the Court will provide a brief
statutory background before analyzing the availability of