Steaming Ahead – June 2022

With so much doom and gloom in the lobster industry, I want to bring you up to speed on the progress the MLA is making in court. As you know, the MLA sued the Secretary of Commerce and National Marine Fisheries Service (NMFS) over the 10-year whale plan developed under the Endangered Species Act. This plan mandates a 98% risk reduction for the lobster fishery by 2030, accomplished through three rounds of rulemaking. NMFS is using the Atlantic Large Whale Take Reduction Plan (whale rules), which falls under the Marine Mammal Protection Act, as the vehicle to implement each round of risk reductions. As a result, the lobster fishery must comply with two different and highly rigorous legal standards as each round of risk reductions is implemented.

The MLA is fighting in court for all Maine lobstermen and we won’t give up. Photo by T. Yoder, Maine Center for Coastal Fisheries.

The MLA’s legal team determined that the lobster fishery had the most to gain by suing over the entire 10-year whale plan rather than the individual rulemakings. If the MLA is successful in arguing that 10-year plan is flawed and therefore NMFS has over-assigned risk to the lobster fishery, then the court can order NMFS to revise the plan based on the best available science.

The MLA filed its complaint in September 2021. The case was assigned to Judge Boasberg in D.C. District Court, who also has jurisdiction over the case filed by environmental groups which claims the 10-year whale plan and current whale rule do not go far enough.

The briefing schedule for MLA’s case is nearly complete. MLA filed its opening brief in February; NMFS filed its response in April. MLA then filed its reply to NMFS in May. NMFS’s reply to our last brief is due on June 10. All filings in the MLA case will be completed by June 24. Then we will wait to hear from the Judge on how he plans to proceed with the case. All of the filings in the environmental organizations’ case were completed in late April.

Suing the federal government has been a heavy lift for a small organization like the MLA. I am so grateful to everyone who has supported us financially because without that support we quite literally wouldn’t be where we are today. I can say with confidence that the MLA’s legal team is second to none, and I am extremely proud of the work we have accomplished. Hindsight is always 20/20, but I am confident that MLA has put the best arguments forward each step of the way.

Our most recent brief filed in May did a fantastic job distilling our arguments. The MLA’s case addresses NMFS’s overly pessimistic assumptions about right whales and its refusal to consider its own observed data to inform those assumptions. The MLA’s brief states:

“NMFS decided to split its allocation of unobserved right whale mortality 50/50 between the U.S. and Canada, ignoring its own data showing that over 80% of observed mortalities confirmed to a country and fishery from 2010 to 2019 occurred in Canada (as well as 100% of the observed mortalities since 2016). It decided to allocate 100% of right whale mortality from U.S. entanglements with unknown gear to the trap/pot fishery despite NMFS’s observed data showing that non-trap/pot gear entangles and kills right whales. It decided that 0% of right whales die from natural causes despite NMFS’s own information (and common sense) suggesting that right whales die from things in nature, such as predators. NMFS decided that mitigation measures enacted in Canada would have zero benefits despite expressing its belief that “measures taken by the Government of Canada are benefiting right whales.” NMFS decided to assume a 0% increase in calving rates from U.S. “risk reduction” measures despite finding that “higher calving rates” would result from such measures. NMFS then compounded the effects of all of these implausible assumptions by projecting this “worst case scenario” (as described by NMFS) out for 50 years.

“These are not “highly technical” decisions. They are overly simplistic, Solomonic, and all-or-nothing choices. When faced with a range of available data, NMFS simply chose to split the baby (50/50), attribute 100%, or attribute 0%. These choices are arbitrary because they contradict record evidence that tells a more nuanced story than the stark, “worst case” assumptions used by NMFS.

Our brief points out that “NMFS further tries to whitewash its arbitrary choices by claiming that it “did not use ‘worst-case scenarios’ or make ‘unduly conservative modeling assumptions.’ NMFS plainly did use a worst-case scenario. It created a hypothetical (worst-case) scenario, assumed that worst-case scenario would persist for 50 years, and imposed a 98% risk reduction on the American Lobster Fishery to offset the hypothetical impact…”

“By baking multiple pessimistic and worst-case assumptions into a 50-year analysis, NMFS created a long-shot scenario more like the odds of winning the trifecta at a horse race than something that is ‘reasonably certain to occur’ as required by the ESA….”

Although NMFS shrugs off MLA’s serious concerns about the future of the fishery as ‘overblown,’ the agency’s inability to appreciate the real-world consequences of its actions is cold comfort to the hard-working people who, as the undisputed evidence shows, are affected by those actions….”

NMFS had a choice, and it chose to use assumptions, data and modelling that would support its contention that the lobster fishery was the root cause of right whales’ decline. For example, NMFS used the nine worst years of calving data on record in the population projection model and concluded the whales would continue to decline no matter measure the lobster industry adopts, including the 98% risk reduction. NMFS also ran the model using a longer time series of calving data and showed that the whale population would increase no matter what we do.

It ignored the latter in favor of a worst case scenario, and now we are stuck with a 98% risk reduction. NMFS’s actions were arbitrary and capricious…. and we hope that Judge Boasberg agrees.

I know you are all anxious and worried, and I am too. Tomorrow is promised to no one, yet I can promise you that the MLA is fighting for this industry with all that we’ve got. I’m really proud of the work we’ve done thus far and I trust that you are as well.
As always, stay safe on the water.

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