BOSTON (CN) — An epic sea battle unfolded at the First Circuit Tuesday as Massachusetts fishermen tried to harpoon federal regulations that protect the North Atlantic right whale. But it appeared the judges were on the whales’ side and, as in “Moby Dick,” the fishermen may end up shipwrecked.
At issue is a federal rule that limits lobster and Jonah crab fisheries’ use of buoy lines, which can entangle and kill whales.
The fishermen’s lawyer, Daniel Cragg, told the judges that the rule resulted from Congress making a “drafting failure,” but the judges seemed incredulous.
“As between ‘Congress didn’t know what it was doing’ and ‘Congress did something that makes sense,’ it seems like making sense is the better option,” U.S. Circuit Judge Seth Aframe commented dryly during oral arguments.
For centuries right whales, which average 50 feet long and 50 to 75 tons, were targeted by whalers due to their docile nature and high blubber content. By 1937, when hunting them was banned worldwide, there were only about 100 left. The species rebounded a little, but in 1970 they were listed as endangered and the population today is estimated to be around 350.
Apart from being hit by boats, the biggest threat to the whales is becoming entangled in buoy lines. For this reason, the federal government issued an emergency rule in 2022 banning the lines in an area off Cape Cod from February through April of that year, during the whales’ seasonal migration into the New England area.
The following year, Congress enacted a moratorium on further buoy regulation — but it said the executive branch nevertheless could finalize any emergency rules that were already in place. The Biden administration finalized its 2022 rule in early 2024 and banned buoys each year from February through April.
But a group of Massachusetts fishermen sued — and they persuaded a lower court judge that the emergency rule wasn’t “in place” in 2024 because it had expired at the end of the 2022 season and so was no longer in effect.
“There are simply no terms of art in American law where ‘in place’ means something different from ‘in effect,’” Cragg insisted. But the judges weren’t buying it.
“To go your way, we’d have to say that the statute uses two different terms to mean the same thing,” U.S. Circuit Judge William Kayatta said. “That’s not normally how we read statutes.”
“Something has been written down and is in place but it won’t take effect until a later date,” suggested Aframe, a Joe Biden appointee. “I just used those terms differently and I think you understood what I meant.”
Kayatta, a Barack Obama appointee, added that any tax statute providing rates for future years would be in place, but not yet in effect.
The judges also hammered Cragg on the fact that when the moratorium was enacted in 2023 the only emergency rule on the books was the one about buoy lines. If the exception for finalizing emergency rules didn’t apply to that one, it didn’t apply to anything, they reasoned.
“Your reading renders [the exception] as of no effect,” Kayatta told Cragg, who practices with Eckland & Blando in Minneapolis.
Aframe cited a longstanding canon that judges should avoid reading statutes so that they don’t apply to anything.
“If there were ever a situation where that canon makes sense, this is it,” he said. “A big exception that applies to nothing, even though Congress understood the world it was operating in. That doesn’t make any sense.”
Seeing how the winds were blowing, Cragg changed course and spent a lot of time making a technical argument that the government lacked jurisdiction to pursue its appeal. But all three judges battered that ship hard as well.
U.S. Circuit Judge Gustavo Gelpí, another Biden appointee, asked if the attorney had any cases to back up his point.
“None that go my way,” Cragg admitted.
The government’s lawyer, Christopher Anderson, wrapped up his argument before his time expired, something that almost never happens unless the case is a slam-dunk.