Originally published in Island Ad-Vantages, September 7, 2023
Feds won’t challenge pro-lobster court decision
Fishery managers let appeal deadline pass without comment
by Jack Beaudoin
Lawyers from the U.S. Department of Justice have chosen not to appeal the latest court ruling in a legal battle that has pitted North Atlantic right whales against the Maine lobster industry. As a result of the case—Maine Lobstermen’s Association v. National Marine Fisheries Service, et al.—and a regulatory pause put in place by Congress, the government must now wait until the end of 2028 to implement a new set of rules to protect right whales under the Endangered Species Act and the Marine Mammals Protection Act.
The DOJ, which represented federal fisheries managers, had until August 30 to challenge a June 16 appellate court’s decision.
“It’s my understanding that the Department of Justice will not be appealing the June decision in the MLA case,” Maine Marine Resources Commissioner Patrick Keliher said in an email responding to an August 31 inquiry from this newspaper. “It’s good to know that we can now focus on the important work ahead, which includes developing and implementing a robust right whale monitoring program and alternative gear testing that can inform much more targeted and effective regulations during the next phase of rulemaking, scheduled for 2028.”
“The Maine Lobstermen’s Association’s uncontested victory at the Appeals Court puts an end to the federal government’s abuse of power and misapplication of the law in its regulation of the lobster fishery’s impact on right whales,” agreed Patrice McCarron, policy director for the MLA. “The MLA is encouraged that the federal government has accepted the court’s decision and can begin the important work of developing a new Whale Rule and Biological Opinion that are not based on worst-case scenarios and pessimistic assumptions.”
Neither the National Marine Fisheries Service nor the Conservation Law Foundation, which sided with the agency, responded to repeated requests for interviews prior to deadline.
A year ago, on September 8, 2022, U.S. Chief District Judge James E. Boasberg issued a ruling that would have drastically restricted lobstering and related fisheries in order to reduce mortality risks to North Atlantic right whales. Citing figures from the NMFS’s “biological opinion” that put the right whale population at 350 or less, and estimates about the number of whales that were being entangled in U.S. based fishing gear, Boasberg essentially ordered the end of rope fishing in six months, in order to reduce the current minimal risk of entanglement by an additional 90 percent. The new goal set a standard that sought almost no risk of gear entanglement in the Gulf of Maine.
“This case has reached its terminus,” Boasberg wrote at the time.
While he later granted a two-year stay to give the NMFS time to develop new rules to achieve the desired risk reduction, Boasberg’s decision was widely regarded as a sudden and drastic curtailment of the lobster fishery, if not a complete shutdown.
The lobster industry, together with the state of Maine, mobilized in response with a public awareness campaign that questioned that scientific validity of NMFS’s mortality estimates. Lobstermen argued that right whales do not frequent inland waters where most of their traps are deployed, and the last known entanglement in Maine gear occurred more than 20 years ago. They marshaled their own science to show how rising sea temperatures and shifting sources of food had impacted traditional whale migratory patterns, and that most, if not all, gear entanglements were happening in Canadian waters.
They also launched a behind-the-scenes pressure campaign on policymakers and elected officials, spearheaded by Keliher, Gov. Janet Mills and the state’s congressional delegation, that led to the insertion of the six-year regulatory pause into the $1.7 trillion federal spending plan in January.
On the legal front, the state of Maine, the MLA, the Maine Lobstering Union and the Massachusetts Lobstermen’s Association appealed the original court ruling, making their case before a three-judge panel of the U.S. Court of Appeals for District of Columbia Circuit in February.
“We all felt like we had a good morning with our arguments,” said MLA’s appellate attorney Paul Clement at the Maine Fishermen’s Forum in March. “Based on the judges’ questions to us and to the government, I think they understood and processed the arguments we were making.”
Clement was right. On June 16, the appeals court issued a unanimous opinion overturning a lower court’s ruling and eviscerating the biological opinion’s scientific basis for estimating the magnitude of right whale entanglements in U.S. waters.
The Endangered Species Act directed officials to focus “upon ‘likely’ outcomes, not worst-case scenarios,” Justice Douglas H. Ginsburg, Senior Circuit Judge, wrote. “It requires the Service to use the best available scientific data, not the most pessimistic. The word ‘available’ rings hollow if the Service may hold up an action agency by merely presuming that unavailable data, if only they could be produced, would weigh against the agency action.”
Fishery managers conceded that causes of right whale mortality are hard to count, given that dead individuals are rarely recovered. Faced with uncertainty, the biological opinion relied on scientific models to estimate how many whales are likely to die from natural causes, ship strikes, and gear entanglement.
The appeals court cast grave doubts about the validity of those estimates. It ordered Boasberg to “vacate the biological opinion as it applies to the lobster and Jonah crab fisheries.” The NMFS, the appeals courts added, could either develop a new biological opinion that is consistent with the new ruling, or it could argue that its right whale protection plan doesn’t depend on the validity of the previous biological opinion.
There was, of course, a third option—the NMFS or the environmental groups that supported the biological opinion could appeal the case to the full circuit court for review, or seek review by the Supreme Court. But when the August 30 deadline passed, that option was removed.
“While it is certainly positive news that the Department of Justice has declined to challenge the Appeals Court decision in the MLA’s case, the issue is far from resolved,” the MLA’s McCarron said. “We can’t predict the challenges ahead and how this will unfold, but the MLA will be at the table to ensure that whatever regulation, lawsuit, or challenge comes next, it will work for solutions that protect the right whale without decimating this industry and a way of life for thousands of Maine families.”