Maine lobster industry groups sue feds over plan to protect right whales - Mainebiz

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The Maine Lobstermen’s Association on Monday filed a lawsuit against the National Marine Fisheries Service and the Secretary of Commerce in the U.S. District Court for the District of Columbia, challenging the federal government’s 10‐year whale protection plan.

And the Maine Lobstering Union also yesterday filed a civil action related to the plan.

On Aug. 31, the service issued the Atlantic Large Whale Take Reduction Rule, which creates new requirements affecting Maine lobstermen. The rule includes mandates for additional gear marking and gear modification, as well as a seasonal fishing ban across a large swath of offshore waters in the Gulf of Maine.

The plan aims to protect the endangered North Atlantic right whale.

Flawed data

But the lobstermen’s association said the plan will all but eliminate the Maine lobster fishery, and still fail to save the whales.

The complaint says the plan is based on flawed data, was therefore enacted arbitrarily and also fails to account for the positive impact of conservation measures already adopted by the Maine lobster fishery. 

The complaint asks for relief from the new plan.

“The science does not support the agency’s plan,” Patrice McCarron, executive director of the Maine Lobstermen’s Association, said in the release.

The association has said the plan fails to account for other potential hazards faced by whales, including Canadian fishing gear, ship strikes and climate change.

“Using worst-case scenarios that hold Maine lobstermen accountable for right whale deaths occurring in Canada won’t help protect right whales, but it will decimate Maine’s lobster industry,” McCarron added. 

The association said it has supplied the service with evidence that demonstrates the plan’s flaws. That included existing right whale conservation measures, implemented over the last 20 years, combined with the lack of a known right whale serious injury or mortality associated with Maine lobster gear. In fact, the group says, there hasn't been a known case of right whale being entangled with Maine lobster gear in almost two decades.

Targeting lobstermen

“NMFS is targeting Maine lobstermen because it is easy,” said Kristan Porter, a Cutler lobsterman and the association’s president. “We’re a bunch of small, owner-operated businesses.”

According to the complaint, the service’s mandate “ignores the reality that the Maine lobster fishery already has an extremely low incidence of interactions with right whales due, in part, to a suite of mitigation measures that have been implemented for many years.”

A Mainebiz reader poll this week appeared to support Porter's opinion. The survey, released Monday, had already drawn 168 responses by Tuesday morning, 78% of which said the new rule "unfairly targets Maine lobstermen."

Lobstering grounds

The lobster union filed suit in the U.S. District Court for the District of Maine, seeking emergency relief related to the impending closure by agencies of the federal government of what the complaint says is one of the most productive and important lobster grounds utilized by Maine’s lobster fishermen and women. 

Joining the union as plaintiffs are the Fox Island Lobster Co. of Vinalhaven and Frank Thompson, a sixth-generation fisherman, who together with his wife Jean, own and operate Fox Island; and the Damon Family Lobster Co. of Stonington. 

The complaint names as Defendants the Secretary of the United States Department of Commerce, the Assistant Administrator of the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service.

The lawsuit, filed by Portland law firm of McCloskey, Mina, Cunniff & Frawley, alleges the seasonal closure of a 967-square-mile swath of offshore waters in the Gulf of Maine is “the product of an arbitrary and capricious agency action in violation of the Administrative Procedures Act,” according to a news release.

The complaint says right whale sightings in the Gulf of Maine are extremely rare, particularly as the Gulf of Maine continues to warm and whale distribution shifts to Canadian waters. 

The complaint asks the court to restrain the government form implementing the closure unless it demonstrates the closure is needed.

Mills to intervene

In a related development, Gov. Janet Mills on Monday announced that a federal judge granted the state's motion to intervene in pending litigation related to the whale plan.

In the case, Center for Biological Diversity v. Ross, filed in the U.S. District Court in D.C., a consortium of environmental advocacy groups says the plan needs to be made more stringent.

“Intervening in this case is a critically important step in the state’s efforts to support Maine’s vital lobster industry,” Mills said in a separate news release. “A court decision in the plaintiff’s favor could close Maine’s lobster fishery altogether — a completely unacceptable outcome that would be devastating to our lobstermen and their families and devastating to our coastal communities and our economy.”

With the approval of the Office of Attorney General, the Mills administration has contracted with the law firm Nossaman LLP to represent the state of Maine as an intervenor in this lawsuit. The contract is funded through the Governor’s Contingent Account.

“We worked closely with industry to develop approaches that would minimize the hardship to fishermen, and through that effort, informed the rulemaking process, but the battle for this industry is also being waged on multiple fronts,” said Patrick Keliher, commissioner of the Maine Department of Marine Resources. “We are committed to making sure we have the legal expertise and resources necessary to capably represent the interests of Maine’s lobster industry in this pivotal court fight.”

The Maine Lobstermen’s Association is also an intervenor in that case.

Last week, Mills sent a letter to Secretary of Commerce Gina Raimondo asking her to rescind or delay the rule.

Maine has a fleet of 4,800 individually owned and operated lobster fishing vessels that support tens of thousands of jobs.

In 2020, Maine's lobster catch was valued at $405 million, according to DMR.

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