By Hannah LaClaire
Portland Press Herald
ELLSWORTH — A federal appeals court has upheld a seasonal ban on traditional lobster fishing in a nearly 1,000-square-mile area off the Maine coast in an effort to protect endangered North Atlantic right whales.
Practically speaking, the move will have little impact for the Maine lobster industry because the ban already was implemented last fall, but it’s yet another setback for the fishery in its fight against new rules championed by environmental groups and imposed by federal regulators.
The closure is a hotly contested piece of a larger set of rules released last summer by the National Oceanic and Atmospheric Administration aimed at reducing the risk to right whales by at least 60 percent.
Located in federal waters about 30 miles offshore, the restricted area stretches from about Mount Desert Island down to eastern Casco Bay. The 967-square-mile stretch is closed to traditional lobster fishing with vertical buoy lines from October through January. Regulators point to the risk of whales getting entangled in the fishing lines.
Fisheries officials say the restricted area, while representing a small fraction of the Gulf of Maine, is a hotspot for the imperiled whales. In the colder months, they travel south from their New England and Canadian feeding grounds to warmer waters to breed. There are fewer than 340 North Atlantic right whales remaining.
Late fall through early winter isn’t traditionally a busy season for Maine lobstermen, but for those with a license to fish in federal waters more than 3 miles offshore, the colder temperatures mean harder shells and higher prices, making it a lucrative time of year. Regulators estimate the closure affects about 120 boats, but industry members say that number is grossly underestimated. There are an estimated 5,000 lobstermen in Maine.
Last week’s ruling by the 1st U.S. Circuit of Appeals in Boston is the latest development in what has been a contentious legal battle.
After NOAA announced the new rules in August, the Maine Lobstering Union and other industry members pushed back against the closure. In October, the U.S. District Court for the District of Maine issued a preliminary injunction to halt the enforcement of the rules. A month later, the 1st U.S. Circuit Court of Appeals stayed the injunction order pending appeal. The closure went into effect Nov. 18.
The appeals court vacated the original injunction last Tuesday. The court sent the case back to the district court, but noted in its ruling that it does not think the lobster fishing groups that sued to stop the regulations are likely to succeed because Congress has clearly instructed the fisheries service to protect the whales.
“Although this does not mean the balance will always come out on the side of an endangered marine mammal, it does leave plaintiffs beating against the tide, with no more success than they had before,” the court ruled.
Environmental groups praised the court’s decision.
Erica Fuller, senior attorney at the Conservation Law Foundation, said the court made the right call in reaffirming its decision, which will have a “significant” impact on the dwindling whale population.
“With an extinction crisis unfolding in real-time, this decision is necessary for the recovery of North Atlantic right whales,” she said in a statement. “The fact is, this area wasn’t chosen at random. It’s an area where science showed a deadly trifecta of dense lobster gear, heavy lines, and whales for a few months of the year.”
Kristen Monsell, oceans legal director at the Center for Biological Diversity, said the decision was a life-saving one.
“We know how to prevent right whale deaths,” she said. “This dwindling population needs more protection from deadly entanglements in lobster gear and it needs them now.”
Virginia Olsen, director of the Maine Lobstering Union, said in an email that the group was reviewing the court ruling and looking at its options. She said more information on next steps will be available next week.
Patrick Keliher, commissioner of the Maine Department of Marine Resources, said in a statement that the decision was disappointing but not surprising, given the court’s November decision to enforce the closure.
The court failed to take into account gear changes already taken by Maine lobstermen to protect the whales, Keliher said.
The department, he said, is more concerned about another ongoing court case.
A federal judge ruled recently that the government hasn’t done enough to protect the whales from entanglement in lobster fishing gear, which can be lethal, and new rules are needed to protect the species from extinction.
“The state, which has hired specialized outside legal counsel and dedicated significant financial resources to defending the lobster industry in this case, will continue to focus our resources on ensuring the best possible outcome for Maine’s lobster industry as that legal battle continues,” Keliher said.
Patrice McCarron, executive director of the Maine Lobstermen’s Association, also said she was disappointed in the ruling by the appeals court, calling it a “distressing setback” for the many lobstermen who fish in the area.
The association, though, remains entirely focused on ongoing litigation contesting the entirety of the government’s 10-year whale plan, which McCarron said will “all but eliminate the Maine lobster fishery yet still fail to save the endangered right whales.”
The last known entanglement in Maine waters was in 2004 and the whale survived. NOAA officials estimate that about 85 percent of right whales show signs of entanglements, though there is often no way to know where those entanglements occurred.