Sternman Ben Foster unloads lobsters from the boat Sleepless Nights at Greenhead Lobster in Stonington in May 2022. Derek Davis/Staff Photographer, file

Maine’s lobster fishery may have received a six-year reprieve from any new federal regulations, but lobstermen are still wrapped up in litigation over the most recent rule changes, which they say are burdensome and needless.

The Maine Lobstermen’s Association in September appealed a ruling in a lawsuit against federal regulators in which a judge rejected the association’s attempt to block the National Marine Fisheries Service’s 10-year plan to reduce the risk posed by fishing gear to North Atlantic right whales. The animals risk injury or death when they become entangled in lines or gear.

The case has been moving with relative speed through the court system, with oral arguments presented in the U.S. Court of Appeals in Washington, D.C., last week. 

The association argued that the National Marine Fisheries Service, part of the National Oceanic and Atmospheric Administration, failed to rely on the best scientific information available and did not account for the impact of conservation measures already adopted by the Maine lobster fishery. In effect, the lobstermen argue, the federal government placed its thumb on the scale in favor of the whales.

Attorney Paul Clement told judges Friday that the federal agency is required to consider likely scenarios and take the best available science and data into consideration when creating new regulations governing the fishery. Instead, he said, the fisheries service chose to rely on speculation, presumption and worst-case scenarios.

“Properly construed, the Endangered Species Act does not require the federal government to shutter an iconic industry (that is) central to the cultural identity of the State of Maine to avoid speculative harm to an endangered species,” Clement said.

At the heart of the case is a set of much-debated regulations, including new gear marking mandates, a reduction in the number of vertical lines in the water, the insertion of weak points in rope, and a seasonal closure of a nearly 1,000-square-mile area off the Gulf of Maine.

The rules are the first of three phases designed to reduce the risk to the whales by 98% in 10 years. But opponents have said that level of risk reduction will simply shift the extinction from the whales to the lobster industry. Fishermen have long contended that right whales are not in Maine waters, and there has never been a right whale death attributed to Maine’s lobster industry.

Environmentalists, however, argue that just because a death hasn’t been linked to the fishery doesn’t mean it hasn’t happened; a historical lack of gear marking has made it difficult to determine where an entanglement occurred.

The animals’ current population numbers fewer than 340, with only 70 breeding females.

According to Clement, all documented entanglements from 2016 to 2018 were linked to Canadian gear. Of the entanglements they couldn’t attribute to a specific country, half were arbitrarily assigned to the U.S. and half to Canada, he said.

Sommer Engels, an attorney representing the fisheries service, admitted that the analyses could be more precise. “But the question is whether they were reasonable,” she said.

She says they were.

“Although there were more observed entanglements that could be attributed to Canada, most observed data is not representative,” Engels said. “The whales move. Lots of gear is unmarked. So the fact that some have been found in Canada is not representative of the larger circumstance.”

Engels told judges that the fisheries service did use the best available data, but because the whales’ population is so low, the data is limited. The model refers to the “worst-case scenario,” but even if they struck the term from the record, the analysis would still stand on its own, she said. She also noted that the lobstermen’s association didn’t point to any alternative data that the agency should have used instead.

Clement told judges that the lobster industry doesn’t object to all regulations. Some of them, like the gear marking, will only serve to underline that Maine lobstermen are not part of the problem, he said. But other aspects, like the seasonal closure, will cause “irreparable injury.”

A LENGTHY LEGAL BATTLE

The Maine Lobstermen’s Association has been fighting these rules and the science used to develop them since they were first released in August 2021.

In July, U.S. District Judge James E. Boasberg ruled that this first set of regulations didn’t do enough to protect the whales, putting the fishery in violation of the federal Marine Mammal Protection Act and the Endangered Species Act. As a result, the fishery lost two important fishery-sustainability ratings. Boasberg gave regulators until 2024 to implement new, more effective rules.

Then, in September, Boasberg rejected the association’s bid to block the 10-year plan to reduce the risk posed by fishing gear to the whales.

But in December, Maine’s delegation was able to include a rider in a federal omnibus spending package that protects lobstermen from new rules for six more years. The provision essentially reversed the federal court decision by preventing new rules from taking effect until Dec. 31, 2028.

This not only brought the fishery back into compliance with environmental laws but gives fishery officials and researchers time to study potential new types of lobster gear less likely to entangle the whales, and to learn more about them and how much they frequent Maine waters.

The provision includes up to $50 million in annual funding to study, develop and deploy the new “ropeless” fishing technology.

The Center for Biological Diversity, an intervenor in the case, said previously that the omnibus provision will almost certainly begin an irreversible path toward the whales’ extinction. 

Patrice McCarron, executive director of the Maine Lobstermen’s Association, said Monday that she was encouraged by Friday’s arguments. 

The panel was up to speed on the case and it was clear they had thoroughly reviewed the group’s complaint, she said.

“Fishermen in Maine have been heard by the courts,” she said. McCarron said that was in “stark contrast” with how she felt following Boasberg’s ruling.

While there’s no crystal ball to see how or even when the judges might issue a decision, she said she’s confident in the team the association has assembled. 

“Every step of the way we’re quite literally fighting for the future of our industry,” she said.