MLA Legal Defense Fund
The MLA is fighting to save Maine’s lobster industry. We need your support.
Please make your generous donation to MLA’s Legal Defense Fund today.
Donations to the Legal Defense Fund are vital to MLA’s success in this court case.
“The judge could close one of the world’s most sustainable fisheries 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
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 on the MLA web site (www.mainelobstermen.org), 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.
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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