Lobstermen can breathe a sigh of relief as they are no longer under threat of a complete shutdown of the fishery in February, 2021. They also don’t face the risk of a federal court in Washington, D.C., ordering new protective measures for the fishery while the National Marine Fisheries Service (NMFS) continues to work on its pending right whale rules. Still, a separate case in the Bangor District Court continues to threaten the operation of the Maine lobster fishery.
On August 19 Judge James Boasberg of the U.S. District Court for the District of Columbia released his second decision in the case of Center for Biological Diversity v. Secretary of Commerce Wilbur Ross. Judge Boasberg had previously determined that the NMFS’s 2014 Biological Opinion on the lobster fishery is invalid. The fate of the lobster industry was in the hands of the judge since the lobster fishery cannot legally operate without a valid Biological Opinion.
His August decision addressed the question of what should happen to the lobster fishery until NMFS issues a new Biological Opinion under which the fishery may be permitted to operate.
The judge’s decision was fourfold: 1) it vacates the 2014 Biological Opinion and remands it back to the agency; 2) it orders NMFS to complete a new opinion no later than May 31, 2021; 3) it rejects the plaintiffs’ request for an injunction prohibiting use of vertical lines in an area south of Nantucket; and 4) it directs NMFS to update the court on its progress every 60 days, beginning September 30.
“Given the options available to the judge, this is the best-case scenario for the lobster fishery,” said Patrice McCarron, executive director of the Maine Lobstermen’s Association (MLA). “He struck a delicate balance by holding NMFS accountable for fulfilling its mandate to aid the recovery of imperiled right whales without causing undue economic injury to the lobster industry.”
By giving NMFS until May 31, 2021 to complete a new Biological Opinion, the judge acknowledged that the probability of interactions between lobster gear and right whales during the fall and winter months is slight and recognized the importance of completing the ongoing stakeholder process. As a result, he denied the plaintiffs’ request for completion of the Biological Opinion by January 31, 2021.
“MLA’s legal team left no stone unturned in our court submissions. We submitted extensive expert testimony so the judge was able to understand more fully the complexity of threats to right whales, the lack of evidence linking the lobster fishery to entanglements, and the difficulty of identifying effective protection measures,” said Mary Anne Mason, one of the MLA’s two-person legal team. “We pushed the judge to consider the basic principle of administrative law — that the regulatory agency should be given deference to use its specialized expertise to design regulations fulfilling its statutory mission.”
In his ruling, Judge Boasberg noted how much has already been done by NMFS to evaluate expanded protections for right whales and how close it is to completing the process. Effectively closing a large area of the fishery south of Nantucket would have been, in the judge’s opinion, a “short-lived and uncertain reduction of risk” that did not outweigh the public interest in a new rule that relies on scientific and technical expertise and is informed by input from stakeholders and the public.
“The judge made clear his obligation to ensure that NMFS takes prompt action given the very serious threats facing right whales. But he also emphasized that the solution is not as easy as closing an area of the ocean simply because whales have been observed there. Instead, [the plaintiffs] needed to produce credible evidence showing how, where, and when whales are likely to become entangled,” Mason continued. The judge concluded the plaintiffs’ had not provided such evidence.
An important feature of this decision is that the judge gave weight to the economic harm that closure of the lobster fishery would cause, another issue highlighted in MLA’s expert testimony. “The judge looked at the equitable factors he had to weigh before issuing an injunction [to close an area of the fishery],” Mason explained. “The plaintiffs were unable to demonstrate that there likely will be harm to the whales between now and next May. By contrast, MLA submitted compelling evidence of real hardship to lobstermen, which the judge concluded had to be taken into account.”
Relying on a case in the 9th Circuit Court of Appeals, the plaintiffs argued that, under the Endangered Species Act (ESA), only harm to the endangered species could be considered, not economic harm. Although the judge had emphasized that “Congress enacted the ESA in 1973 ‘to halt and reverse the trend toward species extinction, whatever the cost’ in the first phase of this case, he fully examined legal precedents and determined that the plaintiffs had not demonstrated a dire case in which failure to act would result in extinction of a species. Given this circumstance, he ruled against imposing unnecessary hardship on lobstermen whose businesses could be permanently lost.
“The court showed great wisdom in understanding the importance of buy-in from the states and fishing industry in achieving protections for right whales. It demonstrated prudent judgment in recognizing NMFS, rather than the court, as the appropriate management authority,” McCarron added. “However, we are not out of the woods yet.”
To complete the new Biological Opinion for the lobster fishery by May 31, 2021, NMFS must issue an Incidental Take Statement (ITS) for right whales, something that it has never done before. An incidental take is the unintentional take of an endangered or threatened species. As part of the Incidental Take Statement, a plan must be created to make the likelihood of any take “negligible.” “This is uncharted territory for the lobster industry,” noted McCarron. “The judge has made it clear that NMFS can no longer permit the lobster fishery without an ITS based on the fishery’s historic interactions with right whales. So the MLA and its members have been working with the State of Maine and NMFS to address the kind of measures that would be required to meet this standard.”
The court case brought by whale activist Max Strahan against the Maine Department of Marine Resources (DMR) and NMFS in 2019 seeking to prohibit the use of vertical lines in Maine’s lobster fishery is pending in Bangor District Court. Judge Lance Walker denied Strahan’s request for a preliminary injunction on August 10, 2020. Strahan appealed that decision, which will be heard by the First Circuit Court of Appeals later this year. Strahan sought a similar injunction in Massachusetts against that state’s lobster fishery. Based on an April ruling, Massachusetts must obtain an Incidental Take Permit from NMFS within 90 days, otherwise, Strahan may renew his motion to enjoin the use of vertical lines in the Massachusetts fishery.
In addition, the plaintiffs in the Washington, D.C., case remain actively committed to changing the rules for the New England lobster fishery. “They will continue to push the industry in every way they can with the aim of eventually moving to ropeless fishing or an equivalent,” Mason said. “They will push to get to a place where they can say there is truly zero risk to right whales. This decision is just a half a loaf for the environmental groups. They are not going anywhere.”