In Maine Lobstermen’s Association v. National Marine Fisheries Service (Maine Lobstermen’s), the D.C. Circuit restricted the ability of a biological opinion (BiOp) issued under the Endangered Species Act (ESA) to protect endangered species. The Court stated that the National Marine Fisheries Service (NMFS) could not give the North Atlantic right whale (NARW) the “benefit of the doubt” by using “worst-case scenarios or pessimistic assumptions” when creating a BiOp analyzing how lobster and Jonah crab fisheries impacted the NARW. This prohibition precludes NMFS from issuing BiOps using “predictive models for assessment of jeopardy.” This decision counters legislative statements from the 1979 ESA amendments indicating that, due to limited data on impacts to endangered species, agencies must “give the benefit of the doubt to the species.” In relying on a primarily textualist interpretation of the ESA and preventing NMFS from giving NARWs the benefit of the doubt, the D.C. Circuit limited agency interpretations when data is uncertain and contradicted the ESA’s legislative history.
Turning Tides: The D.C. Circuit Will Not Give the Benefit of the Doubt to Endangered Species
