Lobsterman load traps onto a lobster boat at Custom House Wharf in Portland in July 2022. Shawn Patrick Ouellette/Staff Photographer
In a victory for the state’s lobster industry, a federal judge Friday sided with Maine lobstermen, ruling that the federal government used “pessimistic assumptions” when it created new regulations to help save the North Atlantic right whale.
U.S. Court of Appeals D.C. Circuit Judge Douglas Ginsburg’s ruling vacates a biology-based opinion – the government’s 10-year plan to reduce the risk posed by fishing gear to the endangered whales. The decision also brings into question the future of a set of highly contested rules that fishery officials have called burdensome, needless and even dangerous. For now, those rules remain in place.
The Maine Lobstermen’s Association filed the suit in September 2021, arguing that the National Marine Fisheries Service, part of the National Oceanic and Atmospheric Administration, failed to rely on the best scientific information available and did not account for the impact of conservation measures already adopted by the Maine lobster fishery. In effect, the lobstermen argued, the federal government placed its thumb on the scale in favor of the whales.
Ginsburg agreed.
“In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions,” he wrote. “We hold it may not.”
The Endangered Species Act and the regulations call for judgment about what is “likely,” he said, but the fisheries service undermined its own expertise by distorting that judgment, “indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.”
Ginsburg also noted that the presumption ignores that worst-case scenarios can be found on both sides.
“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,” he said. “The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations.”
He directed the district court to vacate the opinion to remand the phase-one rules to the fisheries service.
Patrice McCarron, policy director for the Maine Lobstermen’s Association, called the ruling an “overwhelming victory for lobstering families and the communities that rely on the industry.”
NEW RULES STILL STAND, FOR NOW
At the heart of the case is a set of much-debated regulations, including new gear-marking mandates, a reduction in the number of vertical lines in the water, the insertion of weak points in rope, and a seasonal closure of a nearly 1,000-square-mile area off the Gulf of Maine.
In July 2022, U.S. District Judge James E. Boasberg ruled that this first set of regulations didn’t do enough to protect the whales, putting the fishery in violation of the federal Marine Mammal Protection Act and the Endangered Species Act. Boasberg gave regulators until 2024 to implement new, more effective rules.
But then, in December, a rider to the federal omnibus spending bill brought the fishery into compliance with the Endangered Species Act, allowing it to stay open and granting a six-year reprieve from new, stricter regulations.
While the opinion was vacated, the phase-one rules still stand – at least until the fisheries service can go back to the drawing board.
According to the appeals court, negating the rule could inadvertently shut down the lobster fishery.
“Vacating the rule would create significant uncertainty over whether the Consolidated Appropriations Act continues temporarily to protect the Service and the lobstermen from liability and thus prevents the closure of the fishery,” Ginsburg wrote.
It is possible, he said, that the fisheries service may be able to explain why the rules don’t depend on the validity of the opinion, therefore keeping it in place.
“When the Maine Lobstermen’s Association made the decision to sue the federal government, we knew it wouldn’t be easy, but we refused to go down without a fight … (The ruling) reaffirms what the MLA has been saying all along – the federal government does not have a blank check to use ‘worst case scenarios’ and disregard actual data in its regulation of the Maine lobster fishery,” McCarron said, adding that she hopes the decision will force the fisheries service to develop a plan that will protect whales without eliminating the lobster fishery.
A new biological opinion, and potentially a new rule, are expected in 2028.
REASONABLE OR FAULTY DATA?
Right whales, which run the risk of becoming entangled in fishing gear and drowning or starving to death, number fewer than 340 worldwide, with only 70 breeding females.
The rules were the first of three phases designed to reduce the risk to the whales by 98% in 10 years. But opponents have said that level of risk reduction would simply shift the extinction scenario from the whales to the lobster industry. Fishermen have long contended that right whales are not in Maine waters, and there has never been a right whale death attributed to Maine’s lobster industry.
Environmentalists, however, have argued that just because a death hasn’t been linked to the fishery doesn’t mean it hasn’t happened; a historical lack of gear marking has made it difficult to determine where an entanglement occurred.
All documented entanglements from 2016 to 2018 were linked to Canadian gear. Of the entanglements the fisheries service couldn’t attribute to a specific country, half were assigned to the U.S. and half to Canada.
The fisheries service has admitted that the analyses could be more precise, but argues their conclusions were still reasonable.
Sommer Engels, an attorney representing the fisheries service, said during oral arguments in February that the agency used the best available data, but that because the whales’ population is so low, the data is limited. The model refers to the “worst-case scenario,” but even if they struck the term from the record, the analysis would still stand on its own, she said. She also noted that the lobstermen’s association didn’t point to any alternative data that the agency should have used instead.
But Ginsburg was not convinced.
Because the fisheries service said from the beginning that, when confronted with unknowns it would generally presume the worst scenario for the whales, all their assumptions were tainted, he said.
The conclusion that the fishery kills 46 whales per decade is a “staggering departure from the two documented deaths known to have originated in all U.S. fisheries over a period of nine years,” he wrote.
But the Conservation Law Foundation asserts that the data is sound and the regulations are necessary to preserve the dwindling right whale population, despite Ginsburg’s ruling that the numbers weren’t a strong enough justification.
“Whatever this court and Congress say, the facts and the science show that U.S. fisheries are killing right whales at grossly unsustainable rates,” Erica Fuller, a senior attorney with the Conservation Law Foundation said. “As inadequate as the 2021 rule is, at least those protections will remain in place for the next five to six years.”
The National Oceanic and Atmospheric Administration declined to comment on the ruling.
The Maine Lobstering Union celebrated the win on Friday. The union “joins the rest of the lobstering industry in expressing our relief that the tides have finally turned towards reasoned scientific analysis and away from the worst-case scenarios that have been used to unfairly punish the fishery for over a decade,” it said in a statement.
In other reaction, Gov. Janet Mills and Maine’s congressional delegation said in a joint statement late Friday: “Today’s decision vindicates what the Maine lobster fishery, and the countless communities that rely on it, knew all along – that their practices support the conservation of the gulf ecosystem for generations to come. We are pleased the court has acknowledged that the data NOAA has been using to unfairly target Maine’s fishery is flawed.”
Staff Writer Kay Neufeld contributed to this report.
Send questions/comments to the editors.
