The new year is off to a very busy start, and 2022 will likely prove to be the busiest and most eventful year ever for the MLA.
While the MLA is consumed by litigation over the whale rules, lobstermen are rightfully focused on the looming May deadline to comply with the most recent changes to the whale plan. There’s a lot of work involved in re-rigging more traps per trawl, adding weak inserts to buoy lines, and re-marking vertical lines again (for federal permit holders). The May deadline would be hard to meet during normal times when marine supply shops are fully stocked. But as you are painfully aware, that is not the case this year. To make matters worse, NMFS has approved a very limited number of options for weak inserts, none of which are available for purchase right now. Hopefully the manufactured plastic in-line weak inserts will make it to stores in February, but these days, who knows?
Please don’t let the stress of converting all your gear to comply with the new rules distract you from the real threat. Our industry is facing two additional risk reductions to comply with NMFS’s 10-year whale plan: another 60% risk reduction in 2025 and an additional 87% risk reduction in 2030! As I’ve said before, I’m extremely worried that there is no way for our industry to actually achieve these reductions and still have a viable fishery.
That is why the MLA has sued NMFS.
I’ve heard the state characterize the lawsuit filed by the four environmental groups (eNGO’s) as the most important lawsuit pending right now. While I agree that case is extremely important — which is why the MLA intervened in it four years ago, in 2018 — I disagree that it is the most important litigation pending right now. The eNGO case only allows the lobster industry to play defense. It is past time for us to go on offense, which is why MLA’s lawsuit is so critical.
Court cases are incredibly complicated. To begin with, the legal claims pursued by the plaintiff establish the parameters of what can be argued in court. The plaintiff asserts which actions they believe have violated the law and why. Parties that enter the case as intervenors can only weigh in on the legal issues raised by the plaintiffs.
As an intervenor, your role is to ensure that the court understands your perspective on each issue. But if your key issues are not raised by the plaintiff, the judge has no jurisdiction to decide them. Period. So there are limits on what you can achieve as an intervenor in another party’s lawsuit.
In the eNGO court case, intervenors representing the lobster industry are trying to avoid a shutdown of the fishery on the legal grounds raised by the eNGOs — that is, NMFS failed to issue an incidental take statement. MLA’s involvement was critical in avoiding that outcome when the court issued its ruling in 2019 to give NMFS an extra six months to complete the Biological Opinion, which was finalized in May 2021.
Not surprisingly, the eNGOs are not satisfied with the new Biological Opinion and are once again looking to shut down the lobster fishery, this time going after both state and federal waters. This is a very big deal. The MLA is extremely grateful that the state obtained outside counsel and joined us as an intervenor in this case in 2021. But the eNGOs raise a narrow legal issue that can be decided by the judge without fixing the fundamental flaws in the science underlying the Biological Opinion. It is the Biological Opinion that is driving NMFS’s draconian risk reductions by lobstermen.
That is why the MLA’s case is crucial to preserving a future for Maine’s lobster fishery.
The MLA’s lawsuit seeks to expose the many scientific flaws in NMFS’s Biological Opinion and asks the judge to require NMFS to get the science right before it implements a ten-year whale plan that will wreak havoc on our industry without saving the right whale population. Our lawsuit is aimed at making sure that Maine lobstermen are only required to reach risk reduction goals that match up with the scientifically-documented risk posed by our fishery. It also demands accountability from an agency that has accepted, in spite of contrary scientific evidence, the eNGOs fable that vertical lines in Maine waters are an existential threat to right whales that only ropeless fishing can fix.
It is frustrating that the environmental groups continue to herald management measures recently implemented in Canada and somehow ignore the fact that ten right whales died in Canada in 2019 while these measures were in place. Through the MLA’s lawsuit, we have made it clear that we will not allow the U.S. government to hold Maine lobstermen accountable for right whales that we know are not being killed by our fishery.
I wish we could make this all go away, but that is not possible. Given the dire status of the right whale population and the continued occurrence of serious entanglements that cannot be traced to a fishery, commercial fisheries will remain in the crosshairs of regulators.
It is unrealistic to think we could change the Endangered Species Act (ESA) or the Marine Mammal Protection Act (MMPA). But through the courts, we can change how NMFS implements these laws. We must demand that NMFS meet the legal requirements in the ESA and the MMPA that call for it to use the best science available.
The science that shows Maine lobster gear has never been known to kill a right whale or even entangle a whale since 2004. The science which shows that over the last five years U.S. vessels strikes have killed two whales while U.S. commercial fisheries have not killed any. The science that shows Canadian fishing gear continues, by far, to be the predominant gear removed from entangled whales. The science that shows right whales are moving away from where Maine lobstermen fish and will move even further away by 2050. The science that shows right whales are adapting to a shifting climate and are once again successfully foraging and producing young. The science that shows right whales do perish from natural causes like shark predation.
And the science that shows right whales are showing up in unexpected places like Europe and the Gulf of Mexico, indicating that potentially important habitats are not being surveyed and that these animals should not be considered dead because they may have migrated away from their prior range.
For more than a decade, MLA has exhausted every avenue in seeking fair treatment for Maine’s lobster industry and accountability from NMFS in how and where it targets whale conservation measures. After door after door was slammed in our face, our only recourse was to go on the offense and take this to court.
The MLA will continue to invest significant resources in the eNGO case to help the court understand that shutting down the Maine lobster fishery will not save the right whale population. And we will continue to push for accountability and conservation plans based on sound science so that Maine lobstermen and future generations can continue our proud heritage.
The court cases are moving forward right now. If we are to continue to fight this draconian whale plan and go head-to-head with the environmental groups, we need your support. MLA has the clout and the legal expertise to make a difference, but we can only be successful if we have the funds to do so. Our Save Maine Lobstermen campaign is critical to making this happen. We would be honored to have your support.
As always, stay safe on the water.