MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE
As this
dispute about the effects of lobster fishing on the North
Atlantic right whale sails along its charted course, the
Government Defendants ask the Court to heave to and stay the
suit pending their promulgation of two new conservation
measures that they claim will moot the case. Because the
Court finds that they have shown no compelling need for a
stay, and because harm to a critically endangered species
hangs in the balance, the Court will deny the Motion.
I.
Background
In
January 2018, Plaintiffs Center for Biological Diversity,
Conservation Law Foundation, Defenders of Wildlife, and The
Humane Society of the United States filed their Complaint in
this case. See ECF No. 1. The four asserted claims
arose from the National Marine Fisheries Service's 2014
publication of a Biological Opinion as part of its duties
under the Endangered Species Act. In the 2014 BiOp, which
considered the effects of the New England Fishery Management
Council's American lobster fishery on ESA-listed species
and critical habitats, NMFS found that the fishery was not
likely to jeopardize the endangered North Atlantic right
whale, despite also concluding that “the lobster
fishery has the potential to seriously injure or kill an
average of 3.25 right whales per year.” ECF No. 71 (Pl.
Resp.), Exh. 2 (2014 BiOp) at 4. Plaintiffs' first claim
is that this “no jeopardy” opinion violated the
ESA - as judged by the “arbitrary and capricious”
standard of review in the Administrative Procedure Act,
see Nat'l Ass'n of Home Builders v. Norton,
415 F.3d 8, 13 (D.C. Cir. 2005) - because (a) it improperly
limited the scope of its jeopardy analysis in several ways,
(b) its conclusion was not rationally connected to its stated
facts, and (c) it failed to include a required
“incidental take statement” for the whales.
See Compl., ¶¶ 117-25. Given the purported
invalidity of the 2014 BiOp, Plaintiffs next allege that NMFS
has not complied with its duty under Section 7(a)(2) of the
ESA to “insure” that the lobster fishery does not
jeopardize the whale. See 16 U.S.C. §
1536(a)(2); Compl., ¶¶ 126-29. Plaintiffs'
third and fourth claims contend that, because NMFS recognized
in its BiOp the lobster fishery's lethality and yet
continues to allow it to operate without change, the Service
stands in violation of both the ESA and the Marine Mammal
Protection Act (MMPA), each of which prohibits the
unauthorized “take” of endangered species.
See Compl., ¶¶ 130-39 (citing 16 U.S.C.
§§ 1538(a)(1)(B), (g); then citing id.
§§ 1371(a), 1372(a)).
This
Court granted the parties' joint request “that
discovery and briefing should both be bifurcated, with the
first phase to address liability and a second, future phase
to address remedy, if necessary.” ECF No. 48 (Joint
Mot. to Clarify), ¶ 2. After the close of discovery,
Plaintiffs filed a Motion for Summary Judgment in June 2019.
NMFS requested, and was granted, additional time to file its
opposition. It then filed the present Motion to Stay, along
with a motion requesting that its opposition be due 14 days
after the Court decides whether to grant a stay. The Court
granted the latter motion, meaning that summary-judgment
briefing is now on hold pending the resolution of the Motion
to Stay.
NMFS's
stay request arises from its intent to issue, by July 31,
2020, both (1) a new BiOp for the American lobster fishery
and (2) a regulation amending the Atlantic Large Whale Take
Reduction Plan (TRP). See ECF No. 68 (NMFS Mot. to
Stay) at 2. By way of background, Section 118 of the MMPA
requires NMFS to implement a TRP in order to reduce the harm
to endangered species to a sustainable level. See
generally 16 U.S.C. § 1387(f). The Service
promulgates a TRP after consulting with an advisory Take
Reduction Team (TRT). Id.
In its
Motion, NMFS argues that: (1) its new BiOp and TRP will moot
Plaintiffs' claims; (2) both instruments will
“allow[] NMFS to implement the kind of measures
Plaintiffs purport to champion at about the same time (or
sooner) than would happen if the parties were to proceed with
summary judgment briefing”; and (3) denial of a stay
would cause NMFS “the hardship of having to file a
summary judgment brief on the very issues the TRT discussed
over a year and a half, which could upset the balance of the
equities struck by NMFS and TRT.” NMFS Mot. to Stay at
2.
II.
Legal Standard
A
federal district court “has broad discretion to stay
proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681, 706
(1997) (citing Landis v. N. Am. Co., 299 U.S. 248,
254 (1936)). In “the exercise of [its] judgment,
” the Court must “‘weigh competing
interests and maintain an even balance' between the
court's interests in judicial economy and any possible
hardship to the parties.” Belize Soc. Dev. Ltd. v.
Gov't of Belize, 668 F.3d 724, 732-33 (D.C.
Cir. 2012) (citation omitted) (quoting Landis, 299
U.S. at 254-55; then citing id. at 259). “The
proponent of a stay bears the burden of establishing its
need.” Clinton, 520 U.S. at 708 (citing
Landis, 299 U.S. at 255). A court's stay order
“must be supported by ‘a balanced finding that
such need overrides the injury to the party being
stayed.'” Belize Soc. Dev., 668 F.3d at
732 (quoting Dellinger v. Mitchell, 442 F.2d 782,
787 (D.C. Cir. 1971)). “[I]f there is even a fair
possibility that the stay . . . will work damage to some one
else, ” the movant “must make out a clear case of
hardship or inequity in being required to go forward.”
Landis, 209 U.S. at 255. In order to determine
whether a stay should issue, then, this Court considers (1)
harm to the nonmoving party if a stay does issue; (2) the
moving party's need for a stay - that is, the harm to the
moving party if a stay does not issue; and (3) whether a stay
would promote efficient use of the court's resources.
III.
Analysis
This
Opinion separately addresses the three considerations set out
above.
A.
Harm to Plaintiffs
The
Court first considers “the injury to the party being
stayed.'” Belize Soc. Dev., 668 F.3d at
732 (quoting Dellinger, 442 F.2d at 787). As noted
above, if it determines that there is a “fair
possibility that the stay . . . will work damage to”
Plaintiffs' interests, NMFS's burden becomes even
heavier, for it must then show “a clear case of
hardship or inequity in being required to go forward.”
Landis, 209 U.S. at 255.
Plaintiffs
straightforwardly argue that NMFS's alleged ongoing
violations of the ESA and MMPA would continue unabated during
the pendency of a stay, further endangering North Atlantic
right whales and thus harming “Plaintiffs'
interests in conserving the ever-diminishing right whale
population.” Pl. Resp. at 13. The 2014 BiOp found that
“the lobster fishery ha[d] the potential to seriously
injure or kill an average of 3.25 right whales per year,
” 2014 BiOp at 4, a rate well above the single
human-caused death the whale population can sustain each
year. See ECF No. 72 (NMFS Reply), Exh. A (North
Atlantic Right Whale 5-Year Review) at 17. Because waiting
for passage of the two measures currently in the works at
NMFS merely exacerbates this harm, Plaintiffs argue that a
stay “would sanction an ongoing violation of the
ESA.” Pl. Resp. at 15 (quoting Animal Welfare Inst.
v. Martin, 588 F.Supp.2d 70, 97 (D. Me. 2008)). They
cite several district courts ...