Steaming Ahead – July 2020

There is so much facing the lobster industry these days that it is almost surreal. The government response to the pandemic has hit the restaurant and entertainment industries particularly hard, resulting in the loss of a huge portion of our traditional lobster market. While dealers and processors are innovating new ways to move more lobster through retail and direct-to-consumer outlets, a significant volume of lobster will need to find new customers. Not surprisingly, the lobster industry is split on what, if anything, should be done about this, so it is highly likely that this season will simply run its course. The looming fear is that this will lead to a steep deflation of the lobster price, which will require several years to recover.

We also learned in June that the new herring stock assessment is devoid of good news. Both herring biomass and recruitment to the herring stock remain extremely low. This is a result of recruitment failure and not due to overfishing. Herring quotas have been cut significantly this year, with the commercial fishing quota set at just over 11,000 metric tons. This is down from more than 100,000 metric tons in 2017, and just under 50,000 tons in 2018. The sustained loss of such a huge portion of the bait supply has caused bait prices to skyrocket over the past few years.
These two facts pose significant challenges and will threaten the survival of many lobstering businesses. But truthfully, they are not the most significant obstacles that we face. In my view, the mandate to save right whales is the issue that threatens to dismantle our fishery as we know it.

Maine’s wharves could become quiet places if court cases underway bring a halt or severe disruption to Maine’s lobster fishery. MLA photo.

The MLA is expected to tackle all of these issues of course, plus more, for instance, the push for offshore wind development off the Maine coast. Yet, keep in mind that the MLA is a membership organization funded voluntarily by lobstermen and other industry members through dues. This model has worked for us for more than 65 years, allowing the MLA to successfully steer many of the policies and laws that are now the pillars of lobster conservation and stewardship practices. Based on the present day demands faced by lobstermen, the MLA is no longer funded or staffed adequately to meet this vast array of complex challenges.

But we are not giving up! In order to address the whale issue, the MLA is raising money for the Legal Defense Fund. The whale issue is so broad and complicated that the MLA has needed to bring in reinforcements to represent the lobster industry’s interests. Much of the MLA’s call to action for the Legal Defense Fund has been focused on raising the money necessary for the legal services to represent MLA members in the federal court case involving the Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA). I cannot underscore the importance of the lobster industry having talented lawyers to represent us in these legal challenges. The court’s judgement will clarify how the laws apply to the lobster fishery, and will dictate the legal and regulatory standards that must be met.

In the federal court case, the MLA has been able to provide information about how the lobster industry operates and interacts with right whales. We have urged the court to limit its reach to the legal issues and to leave the management decisions which dictate how the fishery will operate to the regulatory agencies. We do not want a judge deciding how we fish.
If — and it is still an “if” — we are successful in convincing the court to leave the management decisions to the regulatory agencies, we still face an uphill battle. The real threat to how the lobster fishery will operate in the future will be decided through rulemaking.
The environmental community has been effective in creating a narrative making the lobster fishery out to be the “bad guy” when it comes to threats to right whales because it is the largest fishery on the East Coast. They cleverly cite statistics on the recent spate of right whale deaths and entanglement in commercial fishing gear but omit the details about where and how those right whales died and which fisheries were involved. They are silent on the consequences of right whales’ shift in recent years away from the area where the majority of the Maine lobster fishery takes place into the Gulf of St. Lawrence.

Based on their story, how many people would guess that of the 30 right whales that have died since 2017, 77% are attributed to Canada? Based on their story, who would guess that Canadian vessel strikes have been the primary source of these deaths, followed by entanglement in Canadian fishing gear? I would bet money that the stories spun by the environmental community make no mention of the fact that the Maine lobster fishery has never been implicated in the death or serious injury of a right whale.

While dealing with environmental organizations is frustrating, the entity I have been most disappointed in is the National Marine Fisheries Service (NMFS). The agency simply refuses to base its decisions on the best available data. In the federal court’s April ruling, the judge references a previous litigation over a gillnet closure and writes, “the Service’s own expert claimed that “[t]he risk of entanglement mortality to right whales is much higher in trap/pot gear, particularly lobster gear, because lobster fishing accounts for over 97% of the vertical lines on the east coast.”” NMFS expert Mike Asaro made this statement with full knowledge that there has been only one documented mortality or serious injury in US trap/pot gear since 2010 (which was not attributed to the lobster fishery), and three documented mortalities or serious injuries in gillnet gear during that time. It would seem to me that the agency would reach the opposite conclusion given those facts.

But, reality check. The MLA is not the federal government. NMFS is responsible for promulgating rules for the lobster fishery that meet the standards of the MMPA and ESA. Whether we are happy with how they are handling things or not, the Maine lobster fishery must have an effective working relationship with the agency.
It goes without saying that the MLA will continue to demand that NMFS be required to use the best available data to guide regulatory decisions and that the agency be held accountable for its actions. But we must recognize that NMFS eventually will issue a biological opinion, new whale rules, an Incidental Take Statement on right whales for the federal waters fishery, and possible an Incidental Take Permit for Maine’s state waters lobster fishery. If Maine lobstermen are not represented in court and when NMFS creates those rules, who knows what may happen? That is why your support for the Legal Defense Fund is critical. The fund allows the MLA to engage a powerful legal team and other experts to help us through what will surely be a difficult and controversial process.

The MLA Legal Defense Fund also will allow the MLA to fill data gaps related to lobster fishing and whales, conduct related analyses and potentially generate new research. One of the realities of the current situation is that the very people who are doing the majority of research on right whales are also some of the most vocal advocates for fishery closures, ropeless fishing, trap reductions and transitioning to weak rope. The universe of research is no longer balanced. There is a clear need to engage members of the scientific community who are more objective on this issue and ensure that the published literature provides a balanced perspective on the impacts of a multitude of commercial fisheries and other human activities on right whales.

Finally, in addition to addressing the legal, regulatory and scientific issues posed by the right whale situation, the Legal Defense Fund will enable the MLA to challenge the outcome of the federal court case, if the outcome threatens the survival of the industry, and also to identify potential opportunities for the MLA to launch its own legal challenge to this process.

We are in a truly perilous time, not simply because an invisible virus has turned the world upside down, but because two federal laws may force the government to transform the operation of the lobster fishery, or worse, shut it down. There’s that old saying, “Put your money where your mouth is.” I can’t urge you strongly enough to do that, now, today. If you are a Maine lobstermen, or depend on the lobster industry, your livelihood and certainly the fishing prospects of your children are at stake. Please contribute as generously as you can to the MLA Legal Defense Fund.
As always, stay safe on the water.

You can join with the businesses and individuals who have already made their contribution. Give to the Legal defense fund HERE.

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