ELR Citation: 52 ELR 20082
No(s). 18-112 (JEB) (D.D.C. Jul 8, 2022) (Boasberg, J.)

A district court granted summary judgment for conservation groups in a challenge to NMFS' 2021 issuance of a biological opinion (BiOp) and final rule concerning lobster fishing gear requirements and the endangered North Atlantic right whale. The groups argued the BiOp violated the ESA by allowing for the "unauthorized take" of right whales without first making a "negligible impact" finding as required by the Marine Mammal Protection Act (MMPA), and by including an incidental take statement (ITS) that authorized zero lethal takings of right whales despite projections that nearly three whales would be killed annually. The court concluded the Service failed to satisfy the "negligible impact" requirement before setting the authorized level of lethal take in its ITS, and that the discrepancy between the level of authorized take and the level of anticipated take was arbitrary and capricious. It further found that the Service's final rule, which amended specific rules constituting the Atlantic Large Whale Take Reduction Plan, breached time requirements under the MMPA. It thus held both the BiOp and final rule to be invalid, and granted the groups' motion for summary judgment.