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State unlikely to sue NOAA over lobster rules



AUGUSTA — Maine won’t pursue a lawsuit against federal regulators over the new lobster fishery rules aimed at helping the endangered North Atlantic right whale, but state officials are considering other legal avenues.

In a meeting with lawmakers last week, Department of Marine Resources Commissioner Patrick Keliher said he was advised that the state didn’t have much of a case with suing over the rules.

“Anybody can file a lawsuit, as we all know. But to file a lawsuit and be successful is another thing,” he said. “The federal agency will have extreme deference with the courts in these cases. This case is no different.”

Keliher’s office received permission to hire outside legal counsel to file motions to intervene in an ongoing court battle in Washington, D.C., between conservation groups and the National Oceanic and Atmospheric Administration and brought on Linda Larson, a partner at the Seattle law firm Nossaman LLP.

If granted intervenor status, the state would be allowed to testify on the matter even though it is not one of the immediate parties in the federal lawsuit.

“We are going to be very actively engaged in that federal case,” Keliher told members of the Marine Resources Committee.

The state has been authorized to spend $250,000 in legal fees, though that number is expected to grow.

“That will probably be the tip of the iceberg,” Keliher said.

The new rules from NOAA plan to reduce the risk of serious injuries and right whale mortality by 69 percent. Additional rules are expected over the next 10 years.

Released at the end of August, NOAA said there would be new requirements for weak links in lobstermen’s rope, new gear marking requirements and, most controversially, a seasonal closure of 967 square miles of offshore fishing grounds that have been traditionally open to lobstering.

NOAA estimated that it would affect 60 fishermen who fish in that area and an additional 60 lobstermen who would be affected by lobstermen shifting gear out of the closed area.

The closure would run from October to January seasonally and is expected to go into place this fall.

Legislators asked Keliher about the potential conflicts between fishermen’s gear as the lobstermen who fish in the area move into new areas.

“It is certainly something that will be incredibly problematic,” the commissioner said. “It’s not like we have a lot of experience with closed areas in the lobster fishery and shifting gear, but in this case, we will certainly see that.”

Keliher, as well as state Rep. Billy Bob Faulkingham (R-Winter Harbor), felt that NOAA was severely underestimating the issues the closure would cause. The state has also been raising concerns about the financial implications.

And while the new rules are expected to hurt, more change could be coming as conservation groups continue to push in federal court.

“This is a big blow to the industry, but what could come from that lawsuit is much more extreme than what we’re seeing in this rule,” Keliher said. “We believe it is very appropriate to spend and focus our legal efforts within that D.C. circuit court case.”

Ethan Genter

Ethan Genter

Ethan is the maritime reporter for the Ellsworth American and Mount Desert Islander. He also covers Bar Harbor. When he's not reporting, you'll likely find him wandering trails while listening to audiobooks. Send tips, story ideas and favorite swimming holes in Hancock County to [email protected]

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