ELR Citation: 53 ELR 20093
No(s). 22-5238 (D.C. Cir. Jun 16, 2023)

The D.C. Circuit reversed summary judgment for NMFS in a Maine lobstermen group's challenge to the Service's 2021 biological opinion (BiOp) that authorized a series of federal fisheries, including the lobster fishery, and implemented a conservation framework designed to reduce the fisheries' impact on North Atlantic right whales. The group had argued that the BiOp and associated framework made scientific errors that led them to overestimate the fishery's effects on the right whale population, and that NMFS' final rule restricting the use of fishing lines arbitrarily relied on the flawed BiOp. A district court granted summary judgment for NMFS. The appellate court reversed, finding that the Service's reliance on "worst-case scenarios and pessimistic assumptions to benefit a favored side," rather than the best available scientific data, undermined its role as an expert. It directed the district court to vacate the BiOp as applied to the fisheries at issue and remanded without vacatur the final rule to NMFS.