No. 21-1873

DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL LODGE 207; DAMON FAMILY LOBSTER COMPANY, INC.; FOX ISLAND LOBSTER COMPANY, LLC; FRANK THOMPSON,

Plaintiffs, Appellees,

v.

GINA M. RAIMONDO, in her official capacity as Secretary of the United States Department of Commerce; JANET COIT, in her official capacity as Assistant Administrator of the NOAA Fisheries; NATIONAL MARINE FISHERIES SERVICE,

Defendants, Appellants.

No. 21-1874

DISTRICT 4 LODGE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL LODGE 207; DAMON FAMILY LOBSTER COMPANY, INC.; FOX ISLAND LOBSTER COMPANY, LLC; FRANK THOMPSON,

Plaintiffs, Appellees.

v.

CENTER FOR BIOLOGICAL DIVERSITY; CONSERVATION LAW FOUNDATION, INC.; DEFENDERS OF WILDLIFE,

Intervenor-Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge] Before

Kayatta, Barron, and Gelpí, Circuit Judges.

Erika B. Kranz, Todd Kim, Assistant Attorney General, Andrew C. Mergen, Alison C. Finnegan, and Taylor A. Mayhall on brief for appellants Gina M. Raimondo, Janet Coit, and National Marine Fisheries Service. Kristen Monsell, Erika A. Fuller, and Jane P. Davenport on brief for intervenor-appellants Center for Biological Diversity, Conservation Law Foundation, Inc., and Defenders of Wildlife. Jay P. McCloskey, Paula D. Silsby, Thimi R. Mina, Alfred C. Frawley IV, and McCloskey, Mina, Cunniff & Frawley, LLC on brief for appellees District 4 Lodge of the International Association of Machinists and Aerospace Workers Local Lodge 207, Damon Family Lobster Company, Inc., Fox Island Lobster Company, LLC, and Frank Thompson. Ryan P. Steen, Stoel Rives LLP, Mary Anne Mason, General Counsel, Maine Lobsterman's Association, Jane C. Luxton, Kip J. Adams, and Lewis Brisbois Bisgaard & Smith LLP on brief for Maine Lobsterman's Association, amicus curiae.

November 16, 2021 KAYATTA, Circuit Judge. This case pits the Maine lobster industry against a federal environmental agency seeking to save the endangered North Atlantic right whale from extinction. Earlier this year, the National Marine Fisheries Service (the "Agency") issued a rule barring, from October to January each year, the most frequently employed methods of lobstering in a roughly 967 square mile area of the Atlantic Ocean thirty or so nautical miles off the Maine coast. The Agency implemented this new seasonal closure to reduce the risk that a right whale would become entangled in the ropes connecting lobster traps to buoys. Prior to the closure going into effect, several individuals and an organization affected by the closure joined as plaintiffs and asked the district court to postpone the enforcement of the new rule until that court could finally decide whether the new rule is lawful. The plaintiffs' preliminary request required the district court to predict how likely it is to find the new rule unlawful at the end of the case and to consider now what harms might result in the interim should an injunction either be granted or denied. Agreeing with the plaintiffs, the district court put the new rule on ice.

The government then appealed. It argues on the merits that the district court should not have issued its preliminary injunction. By separate motion, the government also asks us to issue a stay of the district court order so that the new seasonal closure would go into effect while the appeal proceeds.

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