MLA Wins Expedited Review of Whale Rules

Former U.S. Solicitor General joins MLA’s legal team

First published in Landings, November 2022

A federal appeals court has sided with the Maine Lobstermen’s Association (MLA) in granting its request to expedite consideration of its appeal. The Court rarely grants motions to expedite. In granting the motion for expedited appeal, the court laid out a timeline that requires all briefs to be submitted by January 10, 2023.


This decision came just a week after the MLA announced it has expanded its legal team and retained former U.S. Solicitor General Paul Clement to represent it in its appeal to the D.C. District Court of Appeals in its court case against the National Marine Fisheries Service (NMFS) (Maine Lobstermen’s Association v. National Marine Fisheries Service) to reverse a scientifically flawed federal whale plan that will cripple Maine’s lobster industry. The request for expedited appeal comes in response to District Court Judge James Boasberg’s ruling against the association in September.

Paul Clement. NPR photo.


“We are pleased that the appeals court understands the urgency of hearing our argument that National Marine Fisheries Service has abused its discretion and that its current whale plan will not only destroy our industry and our livelihoods, but also won’t recover the right whale,” said Patrice McCarron, executive director of the MLA.


Clement served as U.S. solicitor general and is widely recognized as a leading Supreme Court advocate, focusing on appellate matters and constitutional litigation. He has argued more than 100 cases before the Supreme Court including several of the highest-profile cases of the past decade.


“When we said we refuse to let a single judge’s decision be the last word and that MLA is preparing to go all the way to the Supreme Court, we weren’t kidding,” said MLA president Kristan Porter. “We are incredibly grateful that Paul Clement, arguably the most qualified attorney in the nation on these matters, has chosen to stand with us. Paul has looked at the facts and agrees with what we have been saying all along — NMFS abused its discretion. Maine lobstermen are not driving the right whale toward extinction, but we are being punished by unsound federal rules that will wreck this industry but won’t recover the whale.”


In September 2021, MLA filed its lawsuit challenging the federal government’s fundamentally flawed 10-year whale protection plan mandating a 98% risk reduction that will all but eliminate the Maine lobster fishery yet still fail to save the endangered North Atlantic right whale. MLA argued that NMFS overestimated the lobster industry’s risk to right whales by cherry-picking the science and using unsupported assumptions and “worst-case scenarios” to justify its mandate for Maine’s lobster fishery to reduce its already minimal risk to right whales by 98% by 2030. MLA argued that NMFS also failed to follow mandatory legal requirements to assess the economic and social costs of their actions.


On September 8, 2022, Judge Boasberg ruled against the MLA in an opinion that deferred to the federal agency on all counts without disputing the validity of MLA’s concerns. As a result, NMFS is requiring larger risk reductions sooner than outlined in its 10-year whale plan and will require Maine’s lobstermen to achieve a 90% risk reduction as quickly as possible. If that percentage is not reached, the federal fishery could be shut down. According to Clement, the district court’s ruling is entirely unjustified.


“This is a clear case of government overreach. It is no exaggeration to say that the fate of the Maine lobster fishery, a national icon, hangs in the balance,” said Paul Clement. “The applicable statute requires the agency to apply the best available evidence. The agency instead has resolved every doubt and every disputed issue against the lobster fishery. The agency is inflicting unprecedented hardship on Maine lobstermen, while explicitly acknowledging that all this suffering will do nothing to restore the right whale so long as they continue to die in Canada.”


The MLA continues its urgent fundraising appeals to all who value the Maine lobster fishery. Donations can be made to Save Maine Lobstermen at www.savemainelobstermen.org or by mailing a check to MLA, 2 Storer Street, Suite 203, Kennebunk, ME 04043.

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