First published in Landings, November 2022
Nothing is more infuriating than not being listened to. That is what happened in September when Washington D.C. District Court Judge Boasberg ruled in favor of the National Marine Fisheries Service (NMFS) in the MLA’s court case.
Judge Boasberg gave deference to NMFS, ruling that the agency had followed the proper administrative processes when creating its Biological Opinion and ten-year whale conservation plan. NMFS explained why it did what it did in creating a conservation plan that would largely erase the lobster fishery — and that, according to Judge Boasberg, is all the law requires.
The Maine Lobstermen's Association is in a race against time to protect the lobstering families of Maine. C. Clegg photo.
I have to admit I was a bit shocked that there was any scenario in which the Court would not carefully examine MLA’s argument that the agency deliberately chose “worse case scenarios” and ignored its own data in crafting the ten-year whale plan. Apparently, the Judge has no qualms empowering NMFS to eliminate the Maine lobster industry using a "crap in equals crap out" approach as long as it explains why it considers that the best available science.
Hell no! That just won’t do. The MLA made a sound and potentially precedent-setting argument in our court case and we were not heard. Instead of fixing a broken management process, the Judge’s ruling instead provides NMFS with a blank check to continue to disregard actual data in its regulation of a fishery that has zero documented right whale deaths.
Then, the day after Boasberg’s ruling, NMFS launched its rulemaking process to require the lobster fishery and every other fixed gear fishery from Maine to Florida to reduce estimated risk to right whales by 90%. Despite the fact that this regulatory change literally threatens to put many fishermen out of business, NMFS only provided a one-month public comment period!
A tsunami of bad news? Absolutely. Yet it is in these moments that you learn what you are made of. The MLA Board showed that clearly — they immediately kicked into high gear.
The MLA firmly believes that the entire foundation on which NMFS has built its whale plan is wrong. For years, NMFS has refused to listen to the MLA’s concerns, and now Judge Boasberg has done the same. The MLA knows that the lobster industry’s concerns over the whale plan are real and must be heard. So the Board did not hesitate to continue to push forward.
With strong guidance from our legal team, the MLA filed its notice to appeal Judge Boasberg’s decision within a week of his ruling. Less than a month later, we retained the services of Paul Clement, the country’s top appellate attorney and one of the nation’s most highly accomplished U.S. Supreme Court advocates. This was not a decision taken lightly.
Paul Clement has argued over 100 cases before the Supreme Court. In fact, since 2000 he has argued more Supreme Court cases than any lawyer in or out of government. He has initiated major administrative law challenges and constitutional litigation against the federal government. In short, he is the perfect lawyer to represent MLA through this next phase of litigation and allow the MLA to pursue its arguments all the way to the Supreme Court, if necessary.
Mr. Clement promptly filed a motion to expedite MLA’s appeal. The MLA staff put a lot of work into this request, submitting with our brief ten declarations from lobstermen and businesses to document the harm that the fishery is already experiencing as NMFS moves full steam ahead with a 90% risk reduction. On October 11, we got our reply. The Washington D.C. Appellate Court rarely grants motions to expedite but the MLA’s request was granted less than a week after submittal. We now are in an aggressive timeline, with all briefings to be filed by all parties by January 10, 2023.
This is a high stakes game and it is painfully easy to second-guess yourself. I want you know that at no time throughout this process, particularly after Judge Boasberg’s decision in September, did any member of the MLA board hesitate to continue our legal attack. The MLA case is solid. The entire foundation on which NMFS has built its whale plan is wrong. Judge Boasberg did not actually consider the substance of our claims. The Board will not back down until MLA’s case has been heard.
Retaining Mr. Clement means we have added substantial firepower to our legal team. When the MLA retained the services of Ryan Steen at Stoel Rives, we hired the best Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) attorney in the country. Without his leadership and forethought in strategically building MLA’s lawsuit against NMFS, we would not be in the position to pursue a successful appeal. Steen will continue to serve as MLA’s ESA and MMPA expert as the appeal moves through the legal system.
Even with all the progress MLA has made over the past month, we have an anxious winter ahead of us. While the MLA appeals Judge Boasberg’s ruling, NMFS is pushing forward with its rulemaking to decimate the lobster industry through a 90% risk reduction. And yes, when that is done, they will come back to get us finally to the 98% risk reduction.
We are in a race against the clock as we seek justice for Maine’s lobstering families. That is why the MLA asked the Appeals Court to expedite the case. If we are successful with our appeal, MLA’s original case will go back to District Court to be heard. If we are not successful in our appeal we will take it to the Supreme Court so that our original case can be heard. A proper hearing of MLA’s case will force NMFS to fix the science and develop a risk reduction goal that matches the risk posed by the Maine lobster fishery. I am grateful for the outpouring of support the MLA has received as more and more people come to understand the dire reality facing the Maine lobster fishery. It is painfully clear that the future of the lobster industry now hangs in the balance.
Hiring the best of the best and making the sharpest legal case possible each step of the way costs money … lots of it. We will need many more people and businesses to step up to keep this fight going. Everyone should take a moment to consider: what will happen to you, your community, and the state if the lobster industry is destroyed?
To all of our members and Save Maine Lobstermen supporters, I can’t thank you enough for all your steadfast support. It is what continues to make this fight possible.
As always, stay safe on the water.
–Patrice