Maine lobstermen score victory in appeal over gear rules intended to protect right whales
Maine's lobster industry scored a major legal victory Friday when an appellate court ruled federal regulators went too far to try to protect endangered whales.
In a stinging ruling, the U.S. Court of Appeals for the District of Columbia invalidated the biological opinion that the National Marine Fisheries Services used to impose stricter fishing regulations on lobstermen in the Gulf of Maine. In a 3-0 opinion, the court called the scientific assessment done by federal regulators “arbitrary and capricious as well as contrary to law” and that the agency made assumptions about the cause of North Atlantic right whale deaths with “little empirical support.”
The agency will now have to redo the scientific assessment that underlies the stricter fishing regulations that the agency tried to impose but that Maine’s congressional delegation managed to delay.
“A presumption also ignores that worst-case scenarios lie on all sides,” reads the ruling. “It is not hard to indulge in one here: ropeless fishing technologies, weak links, inserts, and trawls may not work; permanent fishery closures may be the only solution. The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations.”
Scientists estimate there are fewer than 350 right whales left and that entanglements in rope from fishing gear pose a major threat to the survival of the species alongside collisions with ships and environmental changes. The lobster industry and its allies in Maine staunchly disagree and argue that the industry has taken numerous steps — at significant financial cost to fishermen — to avoid entanglements and ensure that lobster ropes and gear break free if a whale encounters them.
The Maine Lobstermen's Association and the Maine Department of Marine Resources have been fighting against the rules for nearly two years, arguing that the feds had overstated the risks that lobster gear pose to endangered North Atlantic right whales.
"This is a big day. This is a good day for the Maine lobster industry,” said DMR Commissioner Patrick Keliher. His agency and the lobster industry have consistently pointed to the fact that there hasn't a documented case of a right whale injured by Maine lobster gear in nearly 20 years and there has never been a death linked to the industry.
"Well, you know, I read it twice and the whole time I was like, 'Is this really happening?'" Keliher said. "But we have been saying the federal government has been overreaching and making broad assumptions that go beyond far where they need to be going. And it's now in black and white from an appeals court saying we were right all along."
Conservation groups have argued that only a tiny of whale entanglements are ever traced back to a specific fishery. And they insist even if a whale doesn’t die from an entanglement, its injuries may leave it unable to reproduce. Right whales are a slow-moving species measuring up to 50 feet long that was nearly hunted to extinction more than a century ago. After rising to more than 500 whales more than a decade ago, the population of North Atlantic right whales has fallen off dramatically in recent years.
“If they’ve been traumatized by ropes, and climate change, lack of food, they may wait for years to calve, maybe up to 12 years, and some never do,” Michael Moore, director of the Woods Hole Oceanographic Institution Marine Mammal Center in Massachusetts, told The Associated Press. “It’s not only about mortality, it’s also about keeping the animals that are still alive healthy and growing.”
Friday's ruling was the latest twist in a yearslong legal battle between conservation groups, federal regulators, Maine's powerful lobster industry and the state's political leaders.
In the summer of 2021, the National Marine Fisheries Service released new rules requiring lobstermen fishing in federal waters to change where and how they fish in federal waters. The rules would have also closed nearly 1,000 miles of waters off the coast of Maine to lobstering for months out of the year. And Maine's lobster industry argued the new restrictions could devastate a billion-dollar industry with deep ties to Maine's historic and identity.
Maine's lobster industry had already scored a major political victory last year when the state's congressional delegation was able to delay the new rules for six years, much to the dismay of conservationists who view the delay as merely exacerbating the right whale’s slide toward extinction.
But Patrice McCarron, executive director of the Maine Lobstermen's Association, said Friday she is “absolutely ecstatic” about the unanimous opinion from the appeals court.
"The only reason we entered into this case was because we were quite literally fighting for our lives, fighting for the future survival of the lobster industry," McCarron said. "And this is a great day for the National Marine Fisheries Service to have to go back and redo their work and do it in a way that can save whales without eliminating our fishery."
A spokesperson for the National Marine Fisheries Service said Friday that the agency cannot comment on ongoing litigation. And there was no immediate comment from some of the conservation groups involved in the legal fight.