Guest Column: DMR, MLA share Similar Legal Strategies

Speaking at the MLA’s Annual meeting last month I had the privilege of sharing a summary of the state’s efforts on the legal front in support of Maine’s lobster industry.

I was pleasantly surprised to hear MLA’s lead legal counsel share his team’s approach. What struck me is that while there are some differences in legal strategies, we share a similar outlook on the flaws in the science driving the whale regulations, and on what must happen to protect both right whales and Maine’s vital lobster industry.

Patrick Keliher is the Commissioner of the Department of Marine Resources. DMR photo.

As I stated to the annual meeting attendees, our initial strategy in the lawsuit CBD v. Ross was to submit an amicus brief that argued that the right approach was to remand NMFS’s existing Biological Opinion (Biop) back to NOAA without vacating it. In other words, we argued for the need to send NOAA back to the drawing board, but to allow the continued authorization of the fishery.

Judge Boasberg vacated the Biop in August 2020 but stayed the decision until the 31st of the following May, allowing NMFS to issue a new Biological Opinion in 2021.

The judge also allowed the plaintiffs to make their case that the new Biop was illegal.

At that point it became clear that the state needed outside counsel with expertise in the Endangered Species Act and the Marine Mammal Protection Act to engage at a deeper level in this case. We saw this case as the most critical one to focus on because a Biop is necessary for Maine’s lobster fishery to be authorized. If the plaintiffs win and the new Biop is vacated, the fishery could potentially be shut down.

Governor Mills appreciates the need for the state to focus its legal resources on this case and freed up money from her contingency fund so we could hire lawyers with the needed depth of experience to intervene in this case. DMR, along with the MLA, the Maine Lobstering Union (MLU) and the Massachusetts Lobstermen’s Association, are all intervenors in CBD v. Ross.

The need for the state to invest in additional legal resources became even more evident when the MLA filed suit against NMFS, claiming that the 2021 Biop went too far in placing obligations on the Maine lobster industry.

After I briefed Governor Mills on the status of the MLA lawsuit, she once again supported our efforts by including $3 million in her budget. We quickly got to work at the Legislature, and we were successful in securing this money for legal representation, allowing DMR to intervene in MLA’s suit as well. These funds will also allow DMR to have an account ready in case appeals or other legal actions are needed.

Here’s where the two legal paths come together. Both cases have the potential to impact the Biop — as mentioned, CBD v. Ross could vacate it altogether, which is the worst possible outcome. The MLA’s case has the potential to send the Biop back to NMFS for improvement.

While there are differences in the two cases, there is shared agreement on NOAA’s arbitrary use and interpretation of the science — this is at the heart of what DMR and MLA are challenging.

The fact that a regulatory body and an industry advocacy group are aligned in their legal strategies is rare, and to me that rarity highlights the extreme approach taken by the federal regulators.

All parties to both suits have submitted their final briefs, and it is a waiting game for Judge Boasberg’s, the U.S. District Court judge presiding over both cases, decision. We are expecting that he could rule on the cases in July or August. Knowing that all this high-powered legal expertise on the part of both the state and the MLA is working toward shared goals gives me hope for a positive outcome.

Have a safe summer.
Pat

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