The Maine Lobstermen’s Association (MLA) has assembled a powerful legal team to represent its members in legal and regulatory challenges regarding the level of protection necessary to safeguard endangered North Atlantic right whales from lobster gear. Jane Luxton, from the Washington D.C. office of Lewis Brisbois, and Mary Anne Mason, now retired from Crowell & Moring, are currently representing the organization in a court case that alleges that lobster gear poses significant harm to right whales.
Mason was a highly respected anti-trust lawyer during her career and also has expertise in maritime law, having served as executive director of the U.S. delegation to the Law of the Sea Conference and as a policy advisor in NOAA’s Office of Coastal Zone Management in the early 1980s. She has extensive experience on right whale legal and policy issues having served as MLA’s counsel since 2007.
Luxton has had a stellar career in the public and private sector and brings extensive knowledge of the workings of the National Oceanic and Atmospheric Administration (NOAA). From 2007 to 2009, she served as general counsel of NOAA, acting as the chief legal officer for all NOAA activities. She was a policy advisor to the Under Secretary of Commerce for Oceans and Atmosphere, providing advice on legal and policy issues related to natural resource damages, coastal zone and fisheries management, endangered species and marine mammal protection. She is currently the Administrative Partner of Lewis Brisbois’ Washington, D.C. office, and co-chair of its Government Relations Group Leadership and Environmental and Administrative Law practices.
“I have a keen appreciation of the complexity of these issues and the need to find working solutions,” Luxton said. “The Endangered Species Act is very difficult to work with. Its requirements make it very hard to find a balanced outcome.”
Luxton’s connection to Maine began as a child when her family vacationed at small cabins along the Penobscot Bay between Camden and Rockland. “I have an affinity for Maine. When I had my own family we would spend part of the summer at Biddeford Pool and more recently in St. George. My son became fascinated with lobsters and he still is,” Luxton said. Mason and her husband spend summers on the St. George peninsula and return to Maine each year for MLA’s Annual meeting and the Maine Fishermen’s Forum.
Luxton and Mason are preparing the MLA’s brief to present in DC District Court on June 18. The MLA is an intervenor in the court case filed against National Marine Fisheries Service (NMFS) by four environmental groups, providing the association full standing in the case, which means that it can present information about the lobster fishery which the judge previously had not heard. To be granted recognition by the court as an intervenor, an organization must demonstrate that it has a unique interest in the case that the judge needs to take into account to make a just decision.
“We are in an urgent situation,” Luxton continued. “The brief is due by June 18 on the question of a remedy. We are putting together compelling expert testimony that highlights the need for a workable and balanced remedy. We have worked hard to find knowledgeable, highly credible experts who can bring home to the judge the weight of our arguments. The system is set up to give us our day in court and to have the judge listen to us.”
“Our aim is to provide the court with a full picture of the work Maine’s lobster harvesters have already done to protect the right whale and to ensure that any decision is made on the basis of the best available science about interactions between Maine’s fishery and endangered whales,” Mason added.
The timeline for a final decision in the federal court case is short with the judge expected to render his opinion by late summer. The work of the MLA’s legal team does not end with the court’s decision. The MLA will review the court’s findings and determine if an appeal is necessary.
The MLA legal team is also reviewing the court case filed in Bangor District Court by Richard “Max” Strahan seeking an injunction against the permitting of vertical buoy lines in Maine’s coastal waters. “We are exploring options to determine how best to support the Maine Department of Marine Resources, which is the defendant in this case,” explained Mason. “We want to ensure that we bring the full force of our resources and expertise to facilitate the best outcome for the state and our members.”
Navigating the morass of red tape created by the legal and regulatory requirements necessary to balance protection of large whales while maintaining a successful and sustainable lobster fishery are not new to the MLA. “The MLA has been fighting for Maine lobstermen to be treated fairly under the whale rules since Pat White was first appointed to the Take Reduction Team back in 1995,” said Patrice McCarron. McCarron took over for White and has served in this role for more than 15 years. “The MLA has a deep understanding of the complex legal and regulatory framework of this issue. Our legal team is ready to see this fight through the courts and the rulemaking process.”
The courts have made it clear that NMFS will be required to issue an Incidental Take Statement (ITS) to continue to permit the lobster fishery moving forward. In its court filings, NMFS revealed that it followed an alternate rulemaking procedure when it issued the 2014 Biological Opinion without an ITS because the lobster fishery would not have been able to proceed had it complied with a strict interpretation of the ESA. The judge wrote disapprovingly of NMFS’ action stating that, “[NMFS] cannot rewrite the statute just because they do not agree with its consequences.”
Luxton does not take this challenge lightly. “The standard to obtain an ITS is significant because it brings the strict conservation standard of both the ESA and MMPA together under one requirement.” She added, “We have our work cut out for us to ensure that NMFS is able to develop an ITS for the lobster fishery that passes legal muster while sustaining a safe and successful fishery for Maine lobstermen.”