ELR Citation: 52 ELR 20128
No(s). 18-112 (JEB) (D.D.C. Nov 17, 2022) (Boasberg, J.)

A district court granted in part and denied in part conservation groups' motion for an order on remedy after it invalidated NMFS' 2021 biological opinion (BiOp) and final rule as related to the U.S. lobster fishery. The parties agreed the rule should be remanded without vacatur to NMFS along with an order requiring the Service to issue a new rule by December 9, 2024, but disagreed on the conditions under which the court should remand the BiOp. The groups sought remand with vacatur, while NMFS requested no vacatur. The court found that NMFS needed to produce a new BiOp to comply with the ESA and the Marine Mammal Protection Act, but that vacatur would inflict considerable hardship on the lobster industry and the states of Maine and Massachusetts. It thus remanded without vacatur the Service's final rule, remanded the BiOp, and held in abeyance the question of whether to vacate the BiOp pending further briefing after issuance of the final rule.