MLA Legal Defense Fund
Donations to the Legal Defense Fund are vital to the future of Maine’s lobster fishery.
“One of the world’s most sustainable fisheries could be closed and we cannot let that happen. Right whales are not dying in Maine lobster gear. Lobstermen have done everything they have been asked to protect right whales and remain committed to doing their part to save the species.”
— Patrice McCarron, MLA executive director
Whale update 2/8/21
With the release of the draft Biological Opinion, NMFS has revealed its plan to reduce risk in the lobster fishery, and all other federal gear fixed gear fisheries, by 98% over the next 10 years. While they have not prescribed exactly how that will happen, they include the development of a “Roadmap to Ropeless Fishing” during the first year of implementation.
You are probably thinking “let’s fight this”, and we plan to, but you must understand that the federal lobster fishery cannot operate without the BiOp and Incidental Take Statement (ITS) for right whales in place. So, it’s complicated.
The first phase of reductions happens in 2021 for the Maine lobster fishery and all northeast trap/pot fisheries with a 60% risk reduction implemented through the federal whale plan. The Proposed Rule is available for public comment until March 1. Online public hearings will be held at the end of February.
If there is any good news to be had, it is that NMFS made a finding of no jeopardy for our fishery and the agency phases in the most stringent reductions in 2025 and 2030.
This is undoubtedly the biggest threat our fishery has ever faced. There is no existing business or operational model that supports a successful lobster fishery under a 98% risk reduction. Our culture and heritage could be erased in 10 short years.
How the industry responds is critical to the future of our fishery and our heritage. The MLA has added 3 new experts to our team to ensure that we leave no stone unturned in our response to these proposals. MLA has hired an ESA/MMPA legal specialist, a policy specialist and a modeler to support the MLA in submitting our comments. This will ensure that we address all of the issues in the Proposed Rule and Biological Opinion and preserve our ability to challenge these actions in the future. The MLA has reached out to all New England fishing industry associations and invited them to sign on to our comment letter. We’ve had a great response so far. Our region’s fishermen must work together if we are going to make it through this. None of this would be possible without the tremendous support we have received for the MLA Legal Defense Fund.
Please review the Overview of Federal Whale Actions – Proposed Rule and Biological Opinion to ensure that you understand these proposed actions. I strongly urge you to participate in one of NMFS’ public hearings on the Proposed Rule on February 16, 17, 23 or 24.
We are now in a 10 year battle to #SaveMaineLobstermen. Your continued financial support is critical to our future success. Thank you!
Federal Case Ruling August 20, 2020
To: MLA Members and #SaveMaineLobstermen Supporters: Judge Boasberg issued his ruling on remedy in the federal court case, Center for Biological Diversity v. Ross, on August 19. The court will not shut down the lobster fishery or agree to an unprecedented request to designate a massive new closure area unsupported by science and unvetted by the stakeholder process. The judge is giving NMFS until May 31, 2021 to complete the new Biological Opinion and whale rules and requiring the agency to update the court on its progress every 60 days. I have provided more detail and explanation of the court’s order below. Overall this is a great outcome for the Maine lobster industry. MLA effectively communicated the importance of the lobster industry to the court and certainly influenced the constructive way the judge handled this very sensitive decision. This outcome would not have been possible without the tremendous outpouring of support from the lobster industry and our communities. While we welcome this good news, we must also recognize that we still have a long way to go on this issue to ensure that the Maine lobster fishery continues to operate in a manner that does not harm right whales and ensures a viable future for today’s lobstermen and for future generations.
May 5, 2020 MLA Press Release
Thousands of Maine’s family-owned lobstering businesses are at risk of extinction due to a recent federal court ruling citing a violation of the Endangered Species Act (ESA) by the National Marine Fisheries Service (NMFS). The world’s most sustainable fishery could be shut down. And that is something that the Maine Lobstermen’s Association cannot let happen.
“The MLA has launched a campaign to raise $500,000 to save Maine’s lobster industry,” announced Patrice McCarron, executive director of the Maine Lobstermen’s Association (MLA). The MLA is an intervenor in the court case and is the only organization in Maine that has been granted standing to participate in the case.
In early April, Judge James Boasberg of the Federal District Court for Washington D.C. ruled that NMFS violated the ESA in permitting the lobster fishery. The judge’s opinion states that “Congress enacted the ESA in 1973 to halt and reverse the trend toward species extinction, whatever the cost.”Whale entanglement data collected by NMFS, however, shows that no right whale deaths or serious injuries have ever been documented in Maine lobster gear. This is in stark contrast to the death of 10 right whales in Canada last year.
“Maine lobstermen have not broken any laws. For nearly a quarter of a century they have followed every law and fishery management regulation, including major changes to their gear and fishing practices to save right whales,” said McCarron. Nevertheless, the court’s decision will directly impact Maine lobstermen and the communities that depend on them. “This case could lead to closure of the world’s most sustainable fishery and we cannot let that happen. Right whales are not dying in Maine lobster gear,” McCarron continued. “Lobstermen have done everything they have been asked to protect right whales and remain committed to doing their part to save the species.”
It’s not just lobstermen whose future is at stake. “This is an urgent situation for Maine’s lobster fishing families and also for everyone in Maine who values our cultural heritage and the economic impact tourism brings to the state,” emphasized Amy Lent, executive director of the Maine Maritime Museum. An adverse decision would have a ripple effect on the thousands of businesses and communities that depend on lobstermen. Lobster is not only a Maine icon, but is an economic pillar for Maine tourism and coastal economy. “This could mean the end of the lobstering tradition for our children,” said McCarron. “We are fighting for our lives right now, and we are prepared to appeal if it comes to that,” she said.
The MLA is calling on anyone who cares about Maine lobster to join together to save Maine’s lobster industry by making a donating to the Legal Defense Fund. Contributions may be made here, via phone 207-967-4555, or by mailing checks made out to “MLA Legal Defense Fund”, mailed to MLA, 2 Storer St., Suite 203, Kennebunk, ME 04043.
Meanwhile – at the State level……
Maine Case in Bangor District Court
In September 2019, Max Strahan filed a complaint against DMR and NMFS in U.S. District court in Bangor, Maine, for authorizing the use of vertical lines in Maine’s state and federal lobster and gillnet fisheries. In May, NMFS filed a motion to dismiss the case but the judge ruled to allow the case to proceed.
In mid-May, Strahan filed a Motion for Preliminary Injunction asking the judge to prohibit the use of vertical buoy lines in Maine’s lobster and gillnet fisheries and to require the state to immediately apply to NMFS for an ESA Section 10 Incidental Take Permit to continue to license these fisheries. Strahan filed a similar case in Massachusetts; the judge there ruled that Massachusetts is required to get an Incidental Take Permit within 90 days to continue to permit buoy lines in its state waters fishery.
The MLU and the MLA have both been granted intervenor status in the Maine case. The court denied Strahan’s motion for a preliminary injunction to prevent DMR or NMFS from continuing to authorize the use of vertical buoy ropes in both Maine fisheries while the case is decided. Strahan has filed an appeal of this decision with the United States Court of Appeals for the First Circuit. Briefing deadlines for the appellate case are not yet established. In the district court case, Strahan has submitted multiple procedural filings, including oppositions to the motions to intervene of the MLU and MLA, both of which were denied by the court. Currently, the parties await issuance by the judge of a procedural order establishing further deadlines.
Pew Trust asks NMFS to Close Lobster fishery
Pew petition for emergency closures
The Pew Charitable Trust sent a petition to NMFS in mid-June requesting emergency rules to protect whales by instituting four closures: a massive year-round vertical line closure below Nantucket in Massachusetts, a seasonal vertical line closure offshore of Mount Desert Island (August to October), a seasonal vertical line closure off Jeffreys (May to July), and a massive offshore seasonal closure in Area 3 along the Area1/Area 3 line (Oct to May). Maine has strongly opposed any proposals for closures during the past few years, and they were soundly rejected by the Take Reduction Team because they show little conservation benefit.
The Maine Congressional delegation, Governor Mills and the MLA each sent letters to NMFS urging the agency to reject the Pew petition. Governor Mills raised concerns that this would delay the release of the long-awaited Biological Opinion and draft whale rules. DMR also did a preliminary analysis of the proposed closures and determined that they were likely to increase risk, as much as 12% in some areas, as fishermen shift gear to surrounding areas. The MLA raised concerns that the Pew petition did not address the documented risk to right whales from other sources, noting that right whale entanglement in lobster gear has declined by 90% since 2010 and that 23 right whales have died in Canada since 2017. The MLA also noted that the proposal would cause significant economic harm to lobstermen and likely increase, rather than decrease, risk to whales as lobstermen shift gear to the edges of the closures, and furthermore, would negate all of the input that fishermen have provided to inform the draft rules under development.
NMFS Still Working On Changes to Whale Rules
Draft Whale Rules and Biological Opinion
In June, GARFO submitted its draft whale rules and accompanying Draft Environmental Impact Statement (DEIS) to the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA) for review. These agencies have 90 days to review the draft rules and may request an additional 30 days, if necessary. It is common for this review to result in modifications to the draft rules. NMFS anticipates that the draft whale rule and DEIS will be published in late summer or early fall, which will begin the formal public comment process. NMFS will schedule public meetings, which may be done online due to the pandemic, to present an overview of the draft plan and to take comments.
NMFS also intends to publish the draft Biological Opinion when the draft whale rules and DEIS are released. The draft Biological Opinion will be released to the New England Fishery Management Council and Atlantic States Marine Fisheries Commission to allow an opportunity for these councils and the public to ask questions and ensure there is clarity around GARFO’s finding. NMFS expects to complete the final rule and final Biological Opinion by the end of May 2021.
The Maine Lobstermen’s Association (MLA) is an intervenor in the court case filed against National Marine Fisheries Service (NMFS) in 2018 by four environmental groups regarding the operation of the American lobster fishery and its impact on North Atlantic right whales. The MLA is the only organization in Maine that has been granted standing to participate in the case.
The court case was divided into two phases. Phase 1 would determine if NMFS violated the law, and if necessary, Phase 2 would decide on a remedy so that the American lobster fishery can continue to operate in compliance with the ESA.
On April 9, the judge ruled on Phase 1 of this case and found NMFS in violation of the Endangered Species Act (ESA).” The judge writes, “failure to include an ITS [incidental take statement] in its 2014 BiOp [Biological Opinion] after finding that the American lobster fishery had the potential to harm the North Atlantic right whale at more than three times the sustainable rate is about as straightforward a violation of the ESA as they come.”
The judge’s opinion emphasizes that “Congress enacted the ESA in 1973 “to halt and reverse the trend toward species extinction, whatever the cost.” During phase two, now underway, the judge will evaluate the need for interim solutions or “remedy” to mitigate the potential risk that lobster gear poses to right whales and will hear the fishing industry’s perspective for the first time. During Phase 1, the judge has only heard from the environmental groups and NMFS on the legal issues.
Phase 2 transitions this case from addressing legal questions to identifying operational solutions to further mitigate the risk that lobster gear may pose to right whales. MLA’s legal team is well prepared and positioned to educate the judge on the Maine lobster fishery, the measures lobstermen have implemented to protect whales, and insist on the use of best available data regarding the lobster fishery and right whales as the basis of any decisions.
As an intervenor of right, with full standing in the case, the MLA will correct significant factual errors in the eNGOs’ allegations that right whales are being harmed by entanglement in U.S. lobster gear. Among other things, MLA will present the facts on the outsized role of Canada in right whale deaths over the last five years. Sadly, all ten right whale deaths in 2019 were attributed to Canada.
Although NMFS, and not lobstermen, have broken the law, the plaintiff eNGOs are expected to press for implementation of an administratively simple remedy, such as a closure, with far-reaching consequences for lobstermen. Such a remedy would remain in force until NMFS completes an updated Biological Opinion (BiOp) as required under the ESA. According to NMFS, the draft BiOp is expected to be released this summer but could take up to a year to implement.
There are no documented serious injuries or mortalities to right whales traced to Maine lobster gear. Nevertheless, the court’s decision will directly impact the operation of the fishery with the potential to cause serious harm
Timeline for Court Case
- January 2018 — Center for Biological Diversity, Defenders of Wildlife, Humane Society file suit against Department of Commerce, NOAA & NMFS
- February 2018 — Conservation Law Foundation and Earth Justice also file suit
- March 2018 – Judge consolidates both cases
- May 2018 — Judge orders case split into two phases. Phase 1 (Liability Phase): Has NMFS violated the ESA, MMPA or APA? and Phase 2 (Remedy Phase): What remedy, if any, is necessary to cure a violation of the law?
- May 2018 — MLA granted status as Intervenor/Defendant with full rights to participate in the case
- June 2019 – Plaintiff eNGOs file motions for summary judgment in Phase 1
- March 2019 — discovery completed on Phase 1 legal issues
- October 2019 — Judge denies NMFS’ motion to stay pending TRT outcome, writing, “Any lag between the Court’s issuance of an injunction against NMFS and . . . Promulgation of a new BiOp is precious time for . . . Right whales, which [have] been suffering unprecedented fatalities in the last three years, particularly from entanglements.”
- November 2019 — NMFS files cross-motion for summary judgment, “The Plaintiffs have not located evidence that gear associated with a federal lobster permit has ever been recovered from a North Atlantic Right Whale since the issuance in 2014 of new whale protective measures, and neither has NMFS.”
- January 2020 — NMFS submits affidavit to court indicating that the Biological Opinion (under ESA) and Proposed Rule (under MMPA) will not be forthcoming before July 2020
- April 2020 —Judge finds that NMFS has violated the ESA and plans to set a schedule for briefs in late April.
- April 2020 — Plaintiffs, Defendants and Intervenors file briefs with requests for procedural schedule. Judge convenes teleconference to hear from the parties. Procedural schedule is set.
- May 15, 2020; Plaintiffs (4 environmental groups) file opening
- June 15, 2020; Federal Defendants (DOJ on behalf of NMFS) file response
- June 18, 2020; Defendant-Intervenors (MLA and MassLA) file response
- June 22, 2020; Amicus curiae file its brief (Maine DMR)
- July 10, 2020; Plaintiffs (4 environmental groups) file their reply
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