Court ruling stops offshore lobstering closure

BANGOR — A federal court ruling from Saturday halts the planned closure of nearly 1,000 square miles of offshore fishing ground to traditional lobstering that was scheduled to start Monday.

U.S. District Court Judge Lance Walker granted a temporary restraining order over the weekend to the Maine Lobstering Union, who had sued the federal government over the planned closure that was introduced by the National Oceanic and Atmospheric Administration to help protect the endangered North Atlantic right whale.

“This victory by the Maine Lobstering Union is a significant step in protecting one of Maine’s most precious industries – lobstering,” said the union’s attorney Alfred Frawley in a statement. “Our lobstermen have put generations of time, effort, and substantial financial resources into their craft. The lobstering industry is not only a treasure to Maine but a treasure to our American history. The regulations proposed by federal agencies would have had a chilling impact on communities throughout Maine. We will continue to push for science and data that reflect what is truly happening in our industry.”

The ruling allows lobstermen to continue fishing in a 967-sqaure mile area of lucrative offshore fishing ground that runs from west of Mount Desert Island to Casco Bay.

In a court hearing on Friday, Frawley made a last-ditch attempt to stop the closure, which was part of a suite of rules handed down by the NOAA in September. He argued that it was not based on the best available science and hammered on the modeling system NOAA used to justify it.

NOAA has said the closure was included because there is an overlap of whale and vertical fishing line density.

The modeling included historical right whale sightings, acoustic monitoring and other data points to determine that this is still a potential hotspot.

In his argument on Friday, Frawley claimed that NOAA enacted the rule not to protect right whales, but to spread the risk across all jurisdictions, “regardless of whether those jurisdictions contribute to the problem or not.”

In his 28-page decision the next day, Judge Walker said the substantial closure was “based on what appears to be a markedly thin statistical modeling methodology.” He wrote that it was “troublesome” that the agency had departed from its practice of using “concrete evidence” to justify closures.

NOAA “does have the ability to generate evidence more reliable than abstract mathematical models to prove or disprove right whale occurrence rates in the Gulf of Maine in the winter season, most notably in the form of passive acoustic recorders that have this year been placed along the Maine coast and could have been placed earlier during the multi-year review process that resulted in the Final Rule,” Walker wrote. “Presumably the Agency recognizes the practical utility of such evidence when it comes to imposing a closure based on buoy line and whale co-occurrence and will soon have such evidence to evaluate, which will either substantiate or contradict its modeling effort.”

Walker made a point to say that he didn’t find NOAA’s regulations arbitrary or capricious, but the union’s claim was strong enough to pause things for further review.

Damon Family Lobster Co., a Stonington lobster wholesale and retail outfit, and a Vinalhaven dealer were co-plaintiffs with the union.

Both communities rely heavily on the lobster industry, an issue Walker took into consideration.

“Without trivializing the precarity or significance of the right whale as a species, I find that the certain economic harms that would result from allowing this closure to go into effect outweigh the uncertain and unknown benefits of closing some of the richest fishing ground in Maine for three months based on a prediction that it might be a hotspot for right whale entanglement,” he wrote in his decision.

NOAA cannot enforce the closure until further action from the court, according to the ruling.

Ethan Genter

Ethan Genter

Former reporter for the Ellsworth American and Mount Desert Islander, Ethan covered maritime news and the town of Bar Harbor.
Ethan Genter

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