First published in Landings, September 2023
We’ve had a summer with more than our fair share of rain and fog, but despite the weather it started on a good note, with the Washington, D.C. Appellate Court ruling that gave hope to the lobster industry. Sadly, however, the summer of 2023 also included a stark reminder of how easily life can be lost, when 18-year-old lobsterman Tylar Michaud’s body was recovered from the waters near Addison on August 21st, one month to the day after he was reported missing.
Patrick Keliher is the Commissioner of the Department of Marine Resources. DMR photo.
I’m grateful for the tremendous efforts of all who joined in the difficult search. Many agencies and individuals devoted countless hours. It speaks volumes about the profound impact a loss like this can have.
While the recovery brings home the hard reality of the loss of this promising young man, the closure it provides will hopefully help those who have been so deeply touched by this tragedy begin to heal. My deepest condolences go to Tylar’s family, friends, and his community.
Legal Victory
The June appeals court decision made it clear that the National Marine Fisheries Service (NMFS) can no longer have its thumb on the scale when determining the risk posed by the lobster industry to endangered North Atlantic right whales. However, this victory doesn’t mean we can lower our guard. On the contrary, it means we have much more work to do.
As I stated in an earlier message to the industry, I’m proud of the collaboration between the legal teams for the industry and the State. It’s rare that government and industry are so aligned, but the facts are now clear; NMFS chose a path that was not supported by law, lacked guaranteed benefits for whales, and completely disregarded the economic devastation it would cause.
The court ordered NMFS to re-do its Biological Opinion using the best available science when determining the risk the lobster industry poses to right whales, not the most pessimistic as it did with the previous version.
The appeals court’s decision allows the current regulation to remain in effect but also orders NMFS to develop a new rule by 2028 that doesn’t rely on worst-case scenario assumptions, but rather on likely outcomes.
This victory was part of a big win for the Maine lobster industry and complements last year’s Congressional win that paused the next phase of rulemaking until 2028 and provided funding for DMR to monitor right whale presence in the Gulf of Maine. We will now be better positioned to have real data that can be used to avoid further unnecessary damage to the industry by NOAA.
That work will include the use of passive acoustic monitors throughout Maine’s portion of LMA1 and parts of LMA3 to detect right whale vocalizations, aerial surveys, boat-based marine mammal surveys, and expanded monitoring of right whale food (zooplankton) in the Gulf of Maine.
The data resulting from that work, combined with harvester reporting and vessel tracking, will support a better understanding of the actual overlap between whales and lobster gear, and a more accurate assessment of the risk posed by the lobster industry.
I know that harvester reporting and vessel tracking are not liked by all, but they are necessary to ensure that future NMFS rules are based on real data, not on their “assumptions.” We will keep industry updated on this important work as it progresses.
Menhaden
This summer also saw Maine begin the menhaden season with a major increase in quota, from 2 million pounds to more than 24 million pounds. That ten-fold increase in state quota has provided both menhaden and lobster harvesters much-needed certainty in their ability to harvest and source bait. By putting controls in place through rulemaking, DMR has managed to stretch that quota through most of the summer. It is my hope that with additional transfers we will avoid even entering the small-scale fishery this year. That of course is dependent on how long fish remain present this fall.
Funding for Gear Modification
DMR has also been administering a program over the summer to provide funds appropriated by Congress to state license holders who held a license in 2022 and federal permit holders with EEZ tags in 2022 who incurred expenses associated with complying with the latest federal right whale regulations, including gear marking, weak links, and trawling up.
In June, DMR mailed out letters explaining to each harvester whether they were eligible for a payment under this program or not. Eligibility requirements were outlined in a FAQ document. Harvesters who were deemed ineligible for the funds were given a chance to appeal that decision. We received over 100 appeals and have conducted a thorough review of each one over the past month.
We are submitting the check requests to the Atlantic States Marine Fisheries Commission (ASMFC) for those who were previously determined eligible, plus those whose appeals have been approved. We will notify awardees of the exact timing and amount of the payments when we have information from ASMFC, but we believe it will be sometime in September. It will take several more weeks to deal with some of the other appeals, because we will be collecting additional information as we investigate those claims.
Getting back to whales - it is nice to have a bit of a break from some of the federal overreach. However, this mess is far from over. DMR is setting up a new science division to work on the issues listed above. We are maintaining our presence in D.C. through our lobbyist because the political pressure to overturn the Congressional action continues. We are also bringing on additional legal help so we are even better prepared for any possible appeals by the federal government or the national environmental groups. I remain committed to this fight and ask that you don’t let your guard down! We will certainly be doing more updates at this fall/winter Lobster Zone meetings.