On October 16, a U.S. District Court judge blocked the implementation of a seasonal ban on lobster fishing in Maine waters which was set to take effect on October 18.
In a 28-page opinion granting injunctive relief, Judge Lance Walker found that the National Oceanic and Atmospheric Administration (NOAA) issued “a substantial closure” of Maine’s lobster fishery “based on what appears to be a markedly thin statistical modeling methodology.”
Walker said the agency’s approach in issuing its final rule departed “dramatically” from its past practices of “justifying closures based on known and predictable whale aggregations demonstrated by concrete evidence.”
The ruling means that Lobster Management Area 1 (LMA1), an area of approximately 1,000 square miles of federal water located in the Gulf of Maine, will not be closed to fishing from October through January while a lawsuit brought by the Maine Lobstering Union (MLU) against the federal government is ongoing.
The MLU was joined in the case by Jean and Frank Thompson, who own and operate the Fox Island Lobster Company in Vinalhaven, as well as by the Damon Family Lobster Company in Stonington. Alfred Frawley, an attorney from the Portland law firm McCloskey, Mina, Cunniff & Frawley, LLC, represented the MLU in the case.
“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,” Frawley said in a statement released on the MLU’s website.
The Maine Lobstermen’s Association (MLA), which filed an amicus brief in support of the MLU’s case, also celebrated Walker’s ruling.
“The court’s decision is welcome news for the lobster industry because it prevents unnecessary and significant harm the closure would have caused hundreds of Maine lobstermen, their families and communities. But make no mistake, this important victory is just one step in a long fight we must pursue against the federal government’s 10 year whale plan that would decimate our industry. The MLA has filed a lawsuit against this flawed plan which will devastate Maine’s lobster fishery while failing to protect endangered right whales,” said Patrice McCarron, executive director of the MLA.
Following the ruling, the Conservation Law Foundation, a New England-based legal group focused on environmental cases, accused Walker of interpreting scientific data without having the credentials of the scientists who influenced NOAA’s final rule.
In his opinion, Walker notes that his role is not to second guess NOAA’s decision to rely on the data it used to craft its final rule, but he objects to NOAA’s reliance on “abstract mathematical models” when it had other tools available to it.
“[T]he agency 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 in his opinion.
Walker also noted that the plaintiffs’ claim that there are no right whales in the Gulf of Maine may not be true, but that NOAA did not provide enough evidence to show right whales “congregate in or pass through the LMA 1 Restricted Area with nearly enough frequency to render it a ‘hotspot’ for whale and buoy line co-occurrence, contrary to the Agency’s characterization.”
Rep. Jared Golden (D-ME) called the decision a victory for Maine’s lobstermen.
“For the first time in this regulatory process, the concerns of lobstermen were weighed fairly and as a result we have a ruling grounded in common sense and the public good,” Golden wrote in a statement posted on Facebook.
Rep. Billy Bob Faulkingham (R-Winter Harbor), a Maine lobsterman, shared similar sentiments in celebrating Judge Walker’s decision.
“It seems like the first time in a long time that truth and common sense have prevailed in this long battle we have fought against unfair over regulation from the federal government. I’m grateful to the Maine Lobster Union for filing this lawsuit and fighting this battle for all Maine lobstermen. Hopefully we have reached a turning point in this fight for justice,” Faulkingham said.
Both Maine’s federal congressional delegation and state leaders have spoken out against the seasonal closure of the LMA1 area included in the final rule. Led by Senate President Troy Jackson (D-Aroostook), the Maine Legislature passed a joint resolution when it convened for a special session in September authorizing the Legislative Council to take legal action against the final rule.
There are several other pending court cases challenging NOAA’s final rule and the National Marine Fisheries Service’s (NMFS) biological opinion, including Center for Biological Diversity v. Ross, which is being heard before the U.S. District Court in Washington, D.C. The MLU is also involved in the case.
Gov. Janet Mills announced in September that the Office of the Attorney General had granted her administration intervenor status in the lawsuit. The Mills administration contracted with Nossaman LLP to represent the state. Mills has committed $250,000 to legal fees for the case.
The MLA is also the plaintiff in a federal lawsuit filed against the NMFS and the U.S. Secretary of Commerce, Gina Raimondo, which challenges the 10-year protection plan for right whales that is part of the biological opinion.
