MLA Continues Legal Battle on Possible Whale Rules

How would you feel if you knew that a long line of adversaries was ready to shut down your livelihood and you had no one in your corner to help you wage battle against them? That is the situation currently facing the Maine Lobstermen’s Association (MLA) and Maine lobstermen.
After the death of 18 North Atlantic right whales in 2017, primarily in Canadian waters, environmental groups became galvanized. In January 2018, the Center for Biological Diversity, the Humane Society of the United States, and the Defenders of Wildlife sued the National Marine Fisheries Service (NMFS) for failing to protect the whales. The suit demands that NMFS complete an Endangered Species Act (ESA) Section 7 review of the American lobster fishery within 60 days, asserting that NMFS is in violation of the ESA and the Marine Mammal Protection Act (MMPA) for not adequately protecting North Atlantic right whales. A month later, the Conservation Law Foundation and Earth Justice also filed suit.
Only the MLA has taken steps to defend the Maine lobster fishery from the potentially punitive consequences of the lawsuit. “The MLA will not risk any new whale protection measures which could be handed down by the court with input from only the government and the environmental community. MLA must be at the table to represent Maine lobstermen,” explained Patrice McCarron, MLA’s executive director. Through its Legal Defense Fund, the MLA has been able to draw on the legal expertise of Mary Anne Mason, Esq., a partner at the law firm of Crowell and Moring in Washington, D.C., to become an intervenor in the suit.
“We are facing big legal issues over whales, bait and who knows what else will come up,” explained MLA board member Bobby Ingalls from Bucks Harbor, who contributes $100 a month to the Legal Defense Fund. “We have to try to keep abreast of so many complex issues that could change the way of life we have been living for some time. I see changes on the horizon and a lot of them won’t be easy to live with.”
“The lawsuit is about pushing NMFS to take action beyond what we think the science supports,” Mason said. “The case is before a judge who is a pretty active judge, one who wants the parties to toe the line. It is plausible that it will result in regulations that will affect all lobstermen.”
The case is being pursued at the U.S. District Court in D.C. In May 2018, the MLA successfully petitioned to become an intervenor, which allows it to monitor the litigation and to have a voice during any discussions of remedies. In August, the Massachusetts Lobstermen’s Association followed the MLA’s lead and is also a party to the case at this time.
The financial cost to take part in the case is considerable. As Mason notes, a simple intervenor motion, as was filed on behalf of the MLA, runs into the thousands of dollars. Currently the parties in the case are in the discovery phase, collecting data to support their separate claims. Mason predicts that discovery will continue into the early part of 2019 and that early in the new year the judge is likely to set a schedule for initial motions and briefs, followed by a hearing, if necessary.
“This judge actively manages his cases. He sets deadlines, orders people to come up with a plan and ways to implement that plan. He is being asked to order NMFS to take action under the ESA by a certain time. If he becomes persuaded that NMFS has violated the ESA and must make a finding promptly — before all the scientific questions have been addressed — then lobstermen could be in trouble,” she said. As an intervenor, the MLA can take part if the judge wants a briefing on the substantive merits of a proposal made by either the plaintiffs or the defendant.
This isn’t the first time that the MLA has taken part in the legal process on behalf of its members. In 2007 it also filed successfully to be an intervenor in a legal suit brought by the Humane Society and the Oceans Conservancy against NMFS to force the agency to release regulations regarding right whale protections. As an intervenor, the MLA participated in mediation to reach a settlement in the suit.
The tenor of the dispute, however, has changed significantly since 2007 in the wake of the 2017 mortalities and greatly reduced right whale birth rates. The environmental organizations want the court to force NMFS to review the data used for its 2014 biological opinion on the lobster fishery, which found that the fishery did not jeopardize right whales. The plaintiffs contend that the right whale population’s decline since 2010 and the unprecedented number of right whale deaths indicate that significant changes have taken place in the population and that the data informing the biological opinion should be updated. However, their public statements assume that changes in lobster harvesting practices are required to save the species. This singular focus ignores changes to their habitat and distribution unrelated to the fishery.
“In the last instance, NMFS was able to work through the Atlantic Large Whale Take Reduction Team (TRT) process to develop regulations that were designed to address identified threats to the species. Although that process was contentious, everyone had the belief that they could come up with an effective solution,” Mason explained. “What’s changed is that the focus is on specific remedies, such as ropeless fishing, before the threats have been fully identified. That’s a backward process because the science may not support the need for such a remedy at all.”

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