Guest Column: Rough waters for Maine Lobstermen

Coronavirus has created unprecedented challenges for Maine’s lobster fishery. Traditional market channels are constrained in ways we could never have imagined, forcing the industry to reinvent itself, practically on a daily basis. Direct to consumers sales have been an option for some but can’t be expected to absorb the volume that this industry is capable of producing as we head toward the summer season. During the last month, I have thought often of the expression “building the plane as you fly it.” For me, it captures the feeling of risk and uncertainty that we are all experiencing, with so much at stake.

And unfortunately, coronavirus is not the only challenge we face. As you have likely heard, DC District Court Judge James Boasberg recently ruled against NOAA in a lawsuit regarding right whales brought by a group of environmental organizations. The decision found that NOAA’s 2014 Biological Opinion (BiOp) violated the Endangered Species Act specifically because it did not include a required “incidental take statement.”
I know that there are a lot of questions around what this court decision means to Maine’s lobster industry and that you want to know how the state is working on this problem. It is clearly a difficult situation, but we are fortunate to have a strong legal team in the Attorney General’s office, working with the support of the Governor and Attorney General to address this challenge.

As I write this, we are waiting on the judge to determine what the schedule for the filing of briefs will be. We are also waiting to find out if the court will decide if an interim remedy or remedies are necessary to make sure the lobster industry complies with the Endangered Species Act, prior to the release of the new Biological Opinion that will occur later this summer.
Once the briefing schedule is established, we will file an amicus brief with the court. It will advise the court on the tremendous importance of this fishery to Maine, as well as provide factual data that is relevant to the arguments. Our brief will share with the court the science behind the state’s proposed plan which we submitted in January to NOAA.
Our proposal was based on data that NOAA has used in its own analysis, plus data that came from a survey DMR conducted in 2018, and many of you participated in. That survey of gear configurations gave us sound science on which to base our analysis of risk to right whales. I still strongly believe that our proposed plan is a better outcome than large closed areas, or draconian trap reductions.

Patrick Keliher is the Commissioner of the Department of Marine Resources. DMR photo

The question I get most often in the aftermath of the decision is, will Maine appeal? The quick answer is we can’t, as we are not a party or intervenor to the case. The Maine Lobstermen’s Association is the only group from Maine that has intervenor status, and the State’s attorneys are working with theirs to coordinate our efforts.
While you are likely angry and frustrated that the State can’t appeal, please understand that the decision on this case was very narrow, and is really about process. Basically, the judge determined that NOAA didn’t follow the Endangered Species Act. We can only assume the judge will want to make sure that NOAA follows the law going forward. We are in a “sliver” — a narrow band of time between now and when the judge makes a final ruling later this summer. After that this case will be moot and we move on to the next stage —that will be the rules put forth by NOAA. This is where our legal rights come back into play. The Governor has made it clear to me that if we believe that their efforts are counter to the needs of the State, we have other legal means at our disposal.

As we navigate the coming months, I urge you to pay close attention to the programs that are being developed to help people and industries impacted by Coronavirus. DMR is compiling and continuously updating information on our homepage: www.maine.gov/dmr, including emerging details from the Department of Labor about unemployment for self-employed individuals which will provide up to 39 weeks of benefits.

The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act included $300 million of disaster monies to be shared by all coastal states and split between commercial harvesters, aquaculturists, dealers, processors, and charter fishing businesses. NOAA is the lead agency for these funds and is determining the allocations to the states. They will provide guidance on how the money may be used. As soon as I have more information on how much of that money Maine will get and how it will be disbursed, I will share that with you through the Department’s own channels.

I have talked to hundreds of fishermen, dealers, and processors since this situation began to unfold. I would like to think I understand what you and your families and crews are going through, but frankly I can only imagine the strain it is causing. DMR is working every day to support you, the work you do, and the communities you live in. While we may disagree on plans, or have competing ideas, the fact is that this industry must all work together to make it through this difficult time — divisiveness must be replaced by cooperation.
I continue to ask for your patience as we work through this mess. Please be safe out there.