Lobster harvesters were forced to remove their gear from a large section of the Gulf of Maine this week. Though their traps may no longer be in the water, the industry is not giving up its fight. 

The Maine Lobstering Union filed an emergency application last week asking the U.S. Supreme Court to vacate a lower court ruling and reopen the roughly 950-square-mile area, which is slated to be closed through January – and every subsequent October through January – in an effort to protect the critically endangered North Atlantic right whale. 

It’s the most recent development in a monthslong legal battle between members of the lobster industry, who say their livelihoods are at risk, and conservationists, who say the whales are headed for extinction. 

Virginia Olsen, a lobsterwoman and a member of the union, said the group looks forward to continuing what it considers a fight to save the industry, and the families and communities that depend on it. 

“Generations of Mainers have taken pride in sustainably cultivating the world’s best lobster while simultaneously protecting the right whales,” Olsen said in a statement. “The decision to close Maine’s waters to this time-honored industry is unfortunately based on misguided and incomplete science.”

In its initial legal complaint in U.S. District Court in October, the union contended that the National Marine Fisheries Service did not use the best available science when creating the new rules, which are intended to reduce the risk to the whales by at least 60 percent.

Alfred Frawley, the union’s attorney, told the judge that just because Maine is responsible for roughly 95 percent of the lines in the water in which the right whales might become entangled, that does not mean it should be blamed for whale deaths in the absence of other supporting data. The agency needs to collect more data, he argued, and consider the closure after analyzing aerial surveillance footage, acoustic monitors and gear distribution data, among other measures. 

The union’s filing on Nov. 24 shows it is taking a similar approach in seeking emergency action from the U.S. Supreme Court, asking it for an emergency injunction or to vacate a lower court ruling, reopening the area to lobstering while the underlying lawsuit is heard in U.S. District Court. 

Maine fishermen already have implemented costly mitigation measures over the years, the group argued, only to see their efforts ignored and additional regulations imposed without analyzing the effectiveness of the previous ones. 

“Neither the North Atlantic right whale nor the State of Maine can afford (the Fisheries Service’s) continued reliance on substantial uncertainty to promulgate hurried and arbitrary regulations that threaten livelihoods without any demonstrable benefit to the species,” the filling states. “Because the hard-working men and women of Maine have borne the burden of onerous, ‘one size fits all’ fishing regulations that treat the Gulf of Maine the same as other Atlantic waters for years, they warrant and deserve the relief sought here.”

The Supreme Court receives about 10,000 petitions a year and only takes up a small fraction, usually 75 to 85 cases, according to the nonprofit Judicial Learning Center. At least four of the nine justices must agree to take up an appeal, and in most cases the central legal issue must have a broad impact beyond the individual case being argued.

As a rule, opponents in a case are allowed 30 days to file their own petition arguing why the lower court’s ruling should stand.

LONG-RUNNING LEGAL BATTLE

Federal fisheries officials released the new set of restrictions on the lobster fishery in August in an effort to protect the whales, which now number fewer than 340, from deadly entanglements in fishing gear.

Most of the new rules, which include state-specific gear marking and weak points in rope to allow entangled whales to break free, won’t go into effect until May.

However, the October-through-January seasonal closure, which affects prime winter fishing grounds, was slated to go into effect almost immediately, with fishermen required to remove their gear from the area by Oct. 18.

But the Lobstering Union and other industry businesses filed a lawsuit in October and U.S. District Judge Lance E. Walker granted a temporary restraining order and preliminary injunction, halting the closure until the details and science behind it could be further scrutinized.

The Fisheries Service and a group of conservationists swiftly appealed to the U.S. District Court in Bangor, asking the court to permit the closure while it reviewed the preliminary injunction, citing new information that the right whale population had declined by another 10 percent last year, from 366 in 2019 to 336 in 2020. The agency has repeatedly defended the science used to justify the closure.

INJUNCTION LIFTED

The District Court denied the motion, so the group moved for similar relief before the 1st U.S. Circuit Court of Appeals in Boston. The court granted the appeal last month, lifting the District Court’s injunction and giving the fishermen two weeks to remove their gear from the restricted area, a window which industry officials criticized for being too narrow.

The closure is now in effect, and federal fisheries officials said in a notice Wednesday that any gear remaining in the restricted area will be in violation of the regulations. Penalties could be $48,000 per violation or higher, depending on the circumstances, officials said.

Located about 30 miles offshore, the restricted area stretches from about Mount Desert Island down to eastern Casco Bay. Federal officials have estimated it will impact about 120 of Maine’s fleet of roughly 5,000 lobster harvesters. Around 60 have been displaced by the closure, and another 60 may be affected by the others relocating. Lobstermen say those figures understate the true impact.

The late fall and winter months aren’t traditionally a busy time for Maine lobstermen, but for offshore fishermen, the colder temperatures mean harder shells and higher prices, making it a lucrative time of year.

The fisheries service estimates that the lobster harvesters who fish in the area may lose about 5 to 10 percent of their revenue, but lobstermen say that is a gross underestimate and that the true figure could be 50 percent or higher.

Ropeless fishing, a new technology that sends buoy lines to the surface using acoustic signals, will be allowed in the area but will require a special permit. Ropeless technology is in the development stage and has not been tested on a commercial scale.

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