Lobstering group appeals decision in lawsuit over whale-protection rules

The Maine Lobstermen’s Association is appealing a ruling in a lawsuit it brought against federal regulators over the science behind measures imposed on the industry to protect endangered whales.

A federal judge recently rejected the group’s bid to block the National Marine Fisheries Service’s 10-year plan to reduce the risk posed by fishing gear to North Atlantic right whales.

The association argued that the fisheries service, part of the National Oceanic and Atmospheric Administration, failed to rely on the best scientific information available, did not account for the impact of conservation measures already adopted by the Maine lobster fishery, and used “worst-case scenario” modeling when developing the plan.

The first phase of the plan, implemented in May, included measures to weaken the vertical ropes that connect buoys to traps on the ocean floor, reduce the number of ropes in the water and decrease whales’ exposure to ropes through seasonal fishery closures.

The Maine Lobstermen’s Association appealed the ruling by U.S. District Judge James E. Boasberg to the U.S. Court of Appeals, and said in a statement Monday that the “draconian” plan would “all but eliminate the Maine lobster fishery yet still fail to save the endangered North Atlantic right whale.”

“We refuse to let a single judge’s decision be the last word,” said Kristan Porter, president of the association. “The facts are clear. Maine lobstermen are not driving the whale towards extinction. There has never been a known right whale mortality associated with Maine lobster gear, and there has not been a single known right whale entanglement with Maine lobster gear in nearly two decades.”

Gov. Janet Mills said Monday that she supports the MLA’s appeal, and also cited the lack of documented right whale deaths due to Maine gear.

“My Administration continues to stand with the Maine Lobstermen’s Association in fighting this wrong and out-of-touch court decision that jeopardizes the livelihoods of thousands of Maine families,” said Mills. “We will continue to fight to see that the Federal government uses sound science and proven facts – most notably that Maine lobster gear has never been responsible for the death of a right whale and that lobstermen have undertaken substantial measures, at great personal expense, to protect them.”

Boasberg found that the fisheries services adequately explained its methods to estimate right whale population and risk and submitted the methods for peer review, which is “all the Administrative Procedures Act requires.”

“The Court need not and does not decide here that the agency’s approach to the multiple issues in play was the only, or even the best, way of analyzing the data or resolving uncertainty,” Boasberg explained in his decision. “Indeed, as circumstances change and new data become available, the agency can and must continually update its assessments. At this juncture, however, the Court is satisfied that NMFS suitably considered the data available at the time of its action and reasonably explained its scientific conclusions.”

The disputed science, including population and mortality estimates for North Atlantic right whales, has far-reaching implications. These range from affecting complex lobster fishery regulations and determinations of compliance with the Marine Mammal Protection Act, to an environmental group’s recent message to consumers that they should avoid buying lobster, which it called an unsustainable fishery because of the threats to whales.

In an open letter to restaurants and retailers, Mills and Maine’s congressional delegation urged them to continue selling Maine lobster despite the decision by Seafood Watch, a project of Monterey Bay Aquarium in California, to add lobster to its “red list” of seafood to be avoided.

“Monterey Bay’s Seafood Watch Program has produced recommendations based on claims and false assumptions that ignore scientific principles that should underpin any legitimate ratings,” the Maine leaders wrote. “To impose a ‘red’ designation grounded in inaccurate and incomplete information severely undermines the credibility of the report’s recommendation.”

The red-listing was based in part on an earlier ruling by Boasberg in a separate lawsuit brought by environmental groups.

In July, Boasberg ruled that new federal regulations didn’t go far enough to protect right whales, and violated the Endangered Species Act and the Marine Mammal Protection Act.

Boasberg asked the parties, who are the same as those in the MLA lawsuit, to propose ways to more quickly reduce risk to whales. The parties urged Boasberg to rule in the MLA lawsuit so they would know whether the models and estimates used by the National Marine Fisheries Service are considered valid by the court, which would inform whether they could be used as the basis of their proposals.

Now that he has ruled that the agency’s science is valid, federal regulators are moving forward with developing new proposed measures to reduce risk to whales. The Atlantic Large Whale Take Reduction Team, which developed the North Atlantic right whale conservation plan based on the Fisheries Service’s science, is meeting this month to discuss a range of options.

Porter said the lobstermen’s association will fight to block federal actions taken that lack credible scientific support or an evidence-based plan to protect whales from harm.

“If we have to go all the way to the Supreme Court to protect our hardworking families and preserve coastal communities with a multi-generational heritage of wise stewardship, that is what we will do,” he said.