ELLSWORTH — A federal district court judge ruled Sept. 9 in favor of the National Marine Fisheries Service, not lobstermen, the state of Maine and industry organizations that appealed new federal regulations designed to protect the endangered North Atlantic right whale.
“NMFS reasonably explained how it estimated the right whale population and modeled that population into the future, drawing on what it rationally assessed was the best available data and submitting its methods for peer review,” wrote Judge James E. Boasberg in his ruling. “That is all the Administrative Procedure Act requires.”
Local fishermen and officials say the new rules will decimate the livelihood of families and fishing communities up and down the coast.
“We’re just pawns in this huge game of litigation,” Southwest Harbor lobsterman and Zone B Council Chairperson David Horner said from his place of employment — the inshore waters of the Gulf of Maine. “The way I understand it, the Endangered Species Act, the way it’s written, I don’t know if judges have a whole lot of choice.”
The ruling in favor of the National Marine Fisheries Service (NMFS) means that lobstermen must reduce vertical lines to a degree that curtails their ability to fish, industry leaders and fishermen say. They also argue that the scientific evidence supporting the conservation measures does not hold up to those actually fishing in Gulf of Maine waters.
“Obviously, it’s devastating to the lobster industry,” Stonington Town Manager Kathleen Billings told The American. Stonington lands by far the most lobsters in the state. In total, Maine lobstermen added an estimated $724,949,426 worth of lobster landings to the state commercial fishery in 2021.
“We have a lot at stake,” Billings continued. “[Lobstering] makes up $60 [million] to $70 million to our economy and to have this recent ruling, and also too with the Seafood Watch list designation, they pretty much put a torch to our industry and burnt it to the ground for us.”
The Monterey Bay Aquarium Seafood Watch last week placed Maine lobster on its “red list,” that is, products to avoid buying and selling, because the group says the fishery has not done enough to mitigate entanglement risks. Now national companies and restaurant chains are following these guidelines.
Billings, like Governor Janet Mills, the Maine Lobstermen’s Association (MLA), the Maine Department of Marine Resources (DMR) and Maine lobstermen, questions the accuracy of the data behind the new rules.
“There’s questions about the accuracy,” she said, later adding, “These [lobstermen] are not whale killers. They don’t have any gear on record [as having wounded or killed right whales] … This is just not fair, and it has the potential to kill all our communities.”
In the appeal, brought by the MLA, DMR, the Massachusetts Lobstermen’s Association and Local Lodge 207 of the International Association of Machinists and Aerospace Workers against the NMFS, the plaintiffs attacked the biological opinion, which determines what actions will be taken to protect negative impacts to a federally protected species.
In this case, the plaintiffs hold those actions as “arbitrary and capricious,” Boasberg wrote in his ruling, “arguing that it commits a slew of scientific errors that lead it to overstate the impact of their fishery on the right-whale population.”
Boasberg did not agree. Meanwhile, conservation groups filed a successful challenge to the 2021 biological opinion stating that it did not go far enough. The biological opinion is informed by the maximum number of animals that may be killed while allowing its population to remain stable. The right whale population has steadily decreased in recent years, with about 340 right whales estimated alive in 2022. Less than one right whale per year may be killed while maintaining a stable population, the latest scientific data holds.
The MLA says it will continue to fight.
“The federal district court and the NMFS have failed Maine’s lobster industry,” it said in a statement following the court ruling. “It has become crystal clear that neither grasp the devastating impacts their decisions will have on the Maine lobster industry, our coastal communities and the state of Maine. The court’s decision provides a blank check for NMFS to continue to use admitted ‘worst case scenarios’ and disregard actual data in its regulation of a fishery that has zero documented right whale entanglements over the last 18 years.”
Horner is taking the long view, however.
“You’d think there’s a commonsense solution to [this],” he said. “In the end, that’s probably what will happen.”
“The problem really is boats,” he added. “Americans flat out love whales and have managed to convince the public the boats are killing them. But you can’t prove a negative; you can’t prove you’re not doing something. That’s what’s got the industry on the ropes.”