NOAA appeals restraining order keeping offshore grounds open

BANGOR — The National Oceanic and Atmospheric Administration (NOAA) has appealed a Maine judge’s order from last month that allowed traditional lobstering to continue in an area of offshore fishing grounds in the Gulf of Maine.

Two days before 967 square miles of fishing ground was supposed to be closed to lobstering to protect the endangered North Atlantic right whale, Maine U.S. District Court Judge Lance Walker granted the Maine Lobstering Union, Stonington-based Damon Family Lobster Co. and a Vinalhaven lobster dealer a temporary restraining order that allowed fishing in the planned closed area.

Last week, the federal government, which had come up with the rules, appealed that restraining order, arguing that the Trenton-based union, Damon Family Lobster Co. and the third plaintiff had “utterly failed” to meet the burden needed to necessitate the halt of the closure.

NOAA argued that the union and lobster dealers did not provide any evidence of irreparable harm and said that the National Marine Fisheries Service complied with the law and rationally based its decision on the best available science.

The agency said that the public’s interest laid in the favor of NOAA’s attempts to implement the Marine Mammal Protection Act and the Endangered Species Act to protect the whales, which recent reports indicate have dipped down to a population of 336 individuals.

To grant a preliminary injunction, the union and the other plaintiffs need to demonstrate that they could likely succeed on the merits of the case, that there would be irreparable harm if an injunction wasn’t granted, that there is a balancing of hardships and that it was in the public interest to grant an injunction.

While the union’s attorney, Alfred Frawley, made a lengthy argument about the importance of the lobster industry to the state of Maine, he did not show how the closure of the area, known as LMA1, would affect his clients, NOAA wrote in its appeal.

At an earlier court hearing, Frawley argued that the closure, which was planned to run annually from October through January, could put the entire state’s lobster industry in peril.

NOAA went on to say that many claims were made about the economic havoc the closure would spark, but there was no hard evidence for those assertions.

The debate over the closure has largely revolved around if the best available science was used to justify it. NOAA wrote in its appeal that the area is a hotspot for both fishing lines and right whales, based on the best available large whale density modeling and estimates of fishing line distribution.

The modeling included historical right whale sightings, acoustic monitoring and other data points to determine that this is still a potential hotspot, NOAA attorney Taylor Mayhall said in a previous hearing. NOAA also noted that during that October through January timeframe in the past, there have been several observations of right whales in the Gulf of Maine, and there were two sightings this September.

The Center for Biological Diversity, Conservation Law Foundation and Defenders of Wildlife, all conservation groups that have been fighting for stricter regulations on the lobster industry, also filed notices that they were appealing Walker’s restraining order.

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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