On September 14, the Maine Legislature’s Committee on Marine Resources met and discussed the impact new rules recently released by the National Oceanic and Atmospheric Administration (NOAA) will have on Maine’s lobster industry, as well as the state’s legal options for appealing the rules.
On August 31, NOAA announced a new final rule amending its Atlantic Large Whale Take Reduction Plan, which attempts to reduce the number of injuries and deaths to North Atlantic right whales, listed as endangered under the Endangered Species Act.
The new rules not only close nearly 1,000 square miles to lobstering between October and January, a time of year when lobster prices are at their highest, but changes the kind of gear lobstermen can use.
At the September 14 meeting, Megan Ware, who works in the Department of Marine Resources’ (DMR) Department of External Affairs, outlined the three elements of the rules changes. She also detailed proposals DMR had made for inclusion in the rule, as well as several elements included in the final rule that caught the agency by surprise, as they were not part of NOAA’s proposed rule.
Of the three elements of the new rule, the closure of Lobster Management Area 1 (LMA 1) Seasonal Restricted Area in the Gulf of Maine from October through January has received the most media attention. It impacts waters outside 12 miles from shore in zones C, D, and E. The closure will go into effect 30 days after the final rule is published in the federal register.
According to Ware, the closures were part of NOAA’s proposed rule. DMR suggested several changes, including a triggered approach to closing fishing waters. Under DMR’s proposal, the sighting of a right whale in one year would trigger the closure of those waters in the next year. DMR also proposed that Zone E not be included in the LMA 1 closure in January and December. Neither of these suggestions were adopted as part of NOAA’s final rule.
Ropeless fishing in LMA 1 will be allowed during the seasonal closures for those with an exempted fishing permit. Ropeless fishing is an experimental fishing technology and applying for a permit, which allows lobstermen to fish without a vertical buoy line, requires applying for a permit through NOAA, applying for a special license from the DMR and meeting a series of other criteria. This process is laid out in both NOAA’s final rule and final environmental impact report.
Another element of the new rule Ware discussed are changes to regulations about trawling up, which reduce the number of in-lines in the water by allowing more traps to be added to an in-line, and weak points, which are 1,700 pound breaking points on a line that allow an entangled whale to break free.
According to Ware, last summer the DMR came up with proposed combinations for trawling up and weak points that worked for the state’s fishing regions. Ware said most of these were accepted, but not outside 12 miles from shore. According to Ware, fishermen working more than 12 miles from shore must use a 25-trap trawl with one weak point one-third of the way down a line. These changes go into effect in May of 2022.
The third element of NOAA’s rules change involves gear marking. According to Ware, in September of 2020 DMR created a state-specific purple gear mark for Maine. Along with the purple mark, DMR also implemented a green mark that differentiated between exempt and non-exempt waters. The marking system was designed to help provide specific information about the location of a whale entanglement, should it occur.
According to Ware, this system was incorporated into NOAA’s final rule, but NOAA did alter the purpose of the green marking system. It increased the number of green markers from one to four one-foot marks throughout a line. It also changed the purpose of the marking. Instead of distinguishing between exempt and non-exempt waters, NOAA is using the marks to distinguish between state and federal waters.
According to Ware, this creates a challenge for fishermen because it makes it harder to move gear between state and federal waters and still be compliant with the law. Ware stated the change to the marking system may mean fishermen have to move two sets of lines instead of one.
DMR is investigating the costs that may result from the change to the new rules governing gear marking. According to Ware, DMR did not anticipate the costs, which were not considered in NOAA’s final rule or final environmental impact statement, because the changes to the marking system were not included in the proposed rule.
DMR Commissioner Patrick Keliher also attended the marine resources committee meeting, answered questions from committee members and spoke about the legal steps available to the state to appeal the rule.
Among the topics Keliher discussed was the feasibility of ropeless fishing. Ropeless fishing involves a GPS-enabled trap with a wireless modem that can be recalled from the ocean floor by electronic means. According to Keliher, ropeless fishing is still a long way from implementation, with retrieval success rates at around 75% in ongoing research.
Along with retrieval issues, Keliher also noted that ropeless fishing presents issues of retrieving traps for inspections and allowing fishermen to know where another fisherman’s gear is set. Keliher stated that even if the technology behind ropeless fishing were to be developed in a month, fishermen would still face a roadblock with receiving approval for an experimental fishing permit from the Greater Atlantic Regional Fisheries Office. Keliher noted DMR is working on developing new technologies with the federal government.
Keliher also spoke about NOAA’s estimates about the number of fishermen affected by the rules changes and the amount of revenue they are expected to lose.
NOAA estimated the changes would impact 60 fishermen at a cost of 5% to 10% of their annual lobster catch revenue. Rep. William Faulkingham (R-Winter Harbor), a lobsterman himself, noted that these estimates seem extremely low, an assessment the commissioner agreed with.
According to Ware, NOAA’s estimates were based on the 120 vessels that fish outside 12 miles from shore. Since the LMA 1 closure affects half the fishery, NOAA estimated half of the fishermen in that area would be impacted. According to Ware, NOAA’s estimate about decreased catch revenue is based on the fact that it assumed gear will move elsewhere, rather than be taken out of the water in order to be modified to come into compliance with the new rules. Ware also stated NOAA assumed there are benefits to forcing fishermen closer to shore, such as fuel savings, and it built these into its estimates.
Keliher says DMR has raised concerns about NOAA’s financial estimates throughout the entire process, but that the Endangered Species Act does not take economic impacts into effect. He also estimated that upwards of 150 fishermen will be impacted by the new rules and said the costs in lost revenue range on an individual basis from $15,000 to $30,000.
Rep. Joyce McCreight (D-Harpswell) also raised concerns about the potential for conflict between displaced fishermen who will have to move their gear into waters already fished by others. Keliher said conflict is “guaranteed to happen” and noted this is the area Maine Marine Patrol will be spending most of its time as gear is shifted.
Keliher also answered several questions about legal actions DMR will take against the federal government over NOAA’s new rules.
Keliher noted that the federal court system will likely give federal agencies extreme deference and that DMR had received legal advice informing the agency it doesn’t really have a case as it pertains to existing rules.
Keliher mentioned DMR has been working with Gov. Janet Mills and Attorney General Aaron Frey, both of whom have publicly stated opposition to the final rule, and has received permission to hire outside legal counsel. While Keliher wasn’t sure about the timing, he did say DMR has entered an agreement with Seattle law firm Nossamen LLP to file motions intervening in a lawsuit currently before the 5th Circuit District Court in Washington, D.C. According to Keliher, Mills has committed $250,000 towards legal fees.
The lawsuit was originally brought against the National Marine Fisheries Service (NMFS), Wilbur Ross, who was serving as Secretary of Commerce at the time, and the Massachusetts’ Lobstermen’s Association by a coalition of environmental groups. The Center for Biological Diversity, Conservation Law Foundation, and Defenders of Wildlife originally brought the suit, which alleges that the lobster fishery management rules violate the Endangered Species Act, the Marine Mammal Protection Act, and the Administrative Procedures Act, in 2018.
They claimed the NMFS’ 2014 biological opinion didn’t go far enough to protect right whales and that allowing fisheries to continue to operate violated conservation law. Essentially, the agencies argued that the 10-year window for harm reduction contained in the biological opinion didn’t set the risk reduction rate high enough to stop the decline of the right whale population.
A federal court denied NMFS’ motion for a stay of judgment in 2019. In 2020, the court ruled the biological opinion was invalid and that a new opinion needed to be produced. NMFS produced a new biological opinion in May of this year. On September 9, the same groups filed additional legal claims against the NMFS, Secretary of Commerce Gina Raimondo and the Maine Lobsterman’s Association, seeking immediate injunctive relief for more protections. According to Keliher, DMR learned last Friday that the judge in the case is going to allow the supplemental complaint to the existing lawsuit to go ahead.
Keliher said DMR is concerned the outcome from the lawsuit could have more extreme consequences for Maine’s lobster fishing industry than NOAA’s new rule. He also noted DMR has been talking to Secretary of Commerce Gina Raimondo about the economic impact of NOAA’s final rule.
Also discussed were threats to the right whale posed by Canada. As Keliher pointed out, the NMFS’ biological opinion noted that even if Maine is 100% successful in taking steps to protect right whales, whales will continue to go extinct if they continue to be hurt in Canada. Keliher also stated that he has had conversations with the head of NOAA, who hasn’t yet had a meeting with the Canadian government, but has agreed to raise the issue of including state representatives in Canadian affairs.
Keliher also said NOAA’s head considers these conversations to be a government-to-government issue. He stated he disagrees and continues to press the issue.