A Maine legislative committee largely rejected a bill Tuesday that would have created a legal defense fund to help the lobster industry fight recent and expected regulations designed to help protect endangered North Atlantic right whales.

A bipartisan majority of the Legislature’s Marine Resources Committee members, despite expressing support for the bill’s intent, voted 9-4 “ought not to pass” after regulators, industry members and the state Attorney General’s Office said the bill could have unintended consequences and might be unconstitutional.

The industry would pay for the legal defense fund through surcharges on lobster trap tags and licenses. The surcharges would generate an estimated $900,000 a year for the legal fund, but would divert money away from other industry causes.

The money would be split three ways among the Maine Lobstermen’s Association, Maine Lobstering Union and Maine Department of Marine Resources. The two industry groups would be reimbursed for any legal expenses incurred, and the state agency for added staffing expenses and any related legal action or research.

The bill’s sponsor, Rep. William “Billy Bob” Faulkingham, R-Winter Harbor, said the industry sorely needs a reliable source of funding to fight the new right whale protection rules, but regulators said the legal defense bill could end up doing more harm than good. 

The push for legal assistance comes in advance of new federal rules that will require lobstermen in the Gulf of Maine to adopt special equipment and techniques designed to reduce mortality risk to the critically endangered right whale. Those rules are set to take effect May 1, although the industry is seeking a 60-day extension.

The first phase of the National Marine Fisheries Service’s 10-year plan, released last August, adds requirements that include state-specific gear marking, weak points in rope to allow entangled whales to break free, and a 967-square-mile seasonal closure off the Maine coast to reduce risks to whales by 60 percent this year and 98 percent over 10 years. 

Scientists believe there are fewer than 340 right whales left worldwide, so the species has become a flashpoint among environmentalists, federal regulators and fishermen because of the whales’ tendency to become entangled in fishing gear. Maine lobstermen have long contended that they are not part of the problem.

Lobster industry professionals say the 98 percent reduction will cost $50 million to $80 million and would require a complete reinvention of the fishery.

The new rules have been subject to multiple legal challenges from environmentalists, who want even tougher rules, and the lobster industry, which wants the new rules overturned.

Gov. Janet Mills already allocated $250,000 toward the industry’s legal fees in the fall, and Patrick Keliher, commissioner of the Department of Marine Resources, recently told lawmakers that another $980,000 has been approved in the supplemental budget. 

But according to Mark Randlett, an assistant Maine attorney general, the bill could cause legal problems of its own: Such a legal defense fund likely would not hold up to constitutional challenges. 

If a lobsterman were required to pay fees to support a legal stance he or she did not agree with, it could be viewed as a violation of the First Amendment, Randlett said. 

Keliher said the bill, if passed, could have other unintended consequences.

For example, it would divert funds from other needed efforts to manage the lobster industry and could result in staff cuts, he said. To avoid cuts that would “gut” the lobster management program, Keliher said, the marine resources department would likely have to raise trap tag prices again, costing lobster harvesters more money. The Maine Lobster Marketing Collaborative also would lose some funding.

Keliher also said the bill’s language is too broad, which could lead to the money being used for purposes not intended by lawmakers. He suggested that existing legal defense funds for the lobster industry may be more effective.

Patrice McCarron, executive director of the Maine Lobstermen’s Association, said there is a real need to help the industry defend itself against potentially catastrophic regulations.

“This issue is indescribable in terms of the impact it’s going to have on our fishery,” she said. 

However, McCarron said she was hesitant to take funding from the marine resources department and Lobster Marketing Collaborative.

Beyond concerns about constitutionality and broad uses that would be allowed for the money, Rep. Genevieve McDonald, D-Stonington, criticized the proposed increase in the license surcharge for smaller lobstering operations that fish closer to shore. 

The funding is “resting on the backs of those who can least afford the surcharge and who will be least impacted by the whale rules,” she said.

McDonald, a lobster harvester, also balked at the idea of adding another layer of government to the issue, given that both the lobstering union and lobstermen’s association have their own legal defense funds that anyone can contribute to.

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