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Maine’s Legislative Council moves forward with legal challenges to final NOAA lobstering rule

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The Legislative Council met on October 7 to discuss its legal response to the National Oceanic and Atmospheric Administration’s (NOAA) final rule, which will seasonally close approximately 1,000 square miles of Maine’s lobster fishery. 

The council went into executive session to discuss details related to litigation and strategy. Based on that discussion, the council made a motion to move forward with finding legal counsel to file a brief in one of the ongoing lawsuits against NOAA’s final rule. 

Rep. Kathleen Dillinghim (R-Oxford) clarified that Suzanne Gresser, the legislature’s nonpartisan executive director, will search for independent legal counsel. If Gresser is unable to find anyone suitable in a timely manner, the legislature will employ the same legal counsel currently being used by the IAM Maine Lobstering Union in their suit against NOAA. 

The motion passed unanimously among all members present. Members determined to approve the final sum for legal costs at a later date.

When the Maine Legislature met for a special session on September 29, it passed a joint order giving the Legislative Council authority to take whatever legal action it deemed appropriate in relation to the biological opinion and final rule.

The council also reiterated their intention to file amicus briefs in two other ongoing court cases that involve NOAA’s final rule and the agency’s biological opinion about North Atlantic right whale sustainability.

Before the council entered executive session, Department of Marine Resources (DMR) Commissioner Patrick Keliher discussed his agency’s position in relation to the final rule, the biological opinion and several ongoing court cases.

Keliher began by stating the importance of Maine’s lobster fishery, which he says is a $1.5 billion business, cannot be stressed enough.

According to Keliher, Maine has roughly 4,800 individual lobster fishing licensees, approximately 1,200 of whom have a federal permit for the Lobster Management Area 1 (LMA1) that NOAA’s final rule will close seasonally, beginning October 18.

Keliher stressed the regulatory actions DMR has taken over the past two years to try and get ahead of the issue of protecting the right whale population addressed by NOAA’s final rulings. They submitted a draft proposal to NOAA in December 2019, which addressed the regional differences in Maine’s fishing waters, and also kept the safety of the lobster industry in mind.

Keliher stated that NOAA accepted many of DMR’s recommendations, but didn’t include several key components.

Keiher also explained the significance of NOAA’s biological opinion and its final ruling, both of which have bearing on ongoing legal cases.

According to Keliher, the Endangered Species Act (ESA) requires the development of the biological opinion. The ESA requires that any regulatory action taken by federal agencies not jeopardize any species recognized as endangered. Per the law, jeopardizing a species means engaging in any action that would reasonably be expected to appreciably reduce a species’ chances of surviving or recovering in the wild. 

Keliher noted that the ESA’s definition of jeopardy is important to understanding the final ruling. NOAA’s final ruling and its accompanying 10-year management plan for protecting right whales found that following that plan was not likely to cause jeopardy to the species.

“That’s good news for the lobster fishery in the sense that without a no-jeopardy finding the fishery could be closed,” said Keliher.

The no-jeopardy finding is based on several components, including the recently finalized rule, which reduces the risk lobster fishing presents to right whales by 60% immediately, by an additional 60% in 2025 and overall by 98% at the end of 10 years. 

Keliher noted that achieving a 98% risk reduction means reinventing what the fishery looks like. He also pointed out that the final rule and 10-year management plan assume if there is no additional risk from vessel strikes or from fishing in Canada, the right whale population should stabilize and increase.

He also warned that if the rule is put in place and vessel strikes don’t go down, the fishery could still be closed.

“License holders are looking for certainty and I’m afraid it’s going to be a very rough road over the next five to ten years. And that is the best case scenario.” said Keliher.

Keliher also outlined the four pending court cases that are focused on the right whale population, as well as how NOAA’s biological opinion and final rule manage them.

The first of those cases involves litigation brought in the D.C. Circuit Court by several environmental groups against the National Marine Fisheries Service (NMFS) and the U.S. Secretary of Commerce in order to put pressure on the development of the biological opinion. According to Keliher, the groups were successful in getting the biological opinion vacated and having a new one put in place.

Those same groups have now filed a supplemental complaint. Keliher stated they are asking for the current biological opinion to be vacated because the rule doesn’t go far enough to protect right whales. They are looking for an 80% immediate risk reduction rather than the 60% achieved by the current biological opinion.

The Maine Lobstermen’s Association has also filed a suit seeking to have the biological opinion remanded. Keliher stressed the distinction between the goal of the environmental groups’ lawsuit and the lobstermens’ association lawsuit. The lobstermen are seeking to have the biological opinion remanded back to NOAA to address shortcomings in data and modeling efforts. They are not asking it to be vacated, as Keliher explained this could result in the closing of Maine’s fishery.

Keliher further referenced a suit being brought by Max Strahan. One of the defendants in the suit is the Atlantic States Marine Fisheries Commission, on which Keliher serves as chairman. Keliher did not elaborate much on this suit. He also noted that the IAM Maine Lobstering Union has filed a lawsuit in the Bangor federal court challenging the inclusion of the LMA1 closure in the final rule. This lawsuit, he said, is different from the others in that it focuses on the Marine Mammal Protection Act rather than the Endangered Species Act. 

Keliher also expressed frustration with the focus of the lawsuits being brought by environmental groups. He said the drive of environmentalists is to create a lobster industry that doesn’t use rope in fishing.

But, according to Keliher, the technology to allow for this is “years away.” In the meantime, Keliher says ropeless fishing is problematic in many ways. One of these is the problem it would present to mobile fishing, used by fishermen trying to catch fish rather than lobster. If mobile fishermen can’t see wireless traps on the bottom of the ocean, they can’t fish. And if they do fish where traps are located, they could do damage to their gear.

Keliher also says wireless fishing presents problems for managing the lobster industry, which includes ensuring fishermen are complying with regulations and policing traps. If DMR can’t police traps, the sustainability of the fishery could be damaged.

This aspect of managing the fishery, says Keliher, gets lost with environmental groups and is “tremendously frustrating.”

Correction: The original version of this article incorrectly identified Patrick Keliher as the president of the National Marine Fisheries Service rather than the chair of the Atlantic States Marine Fisheries Commission.

About Katherine Revello

Katherine Revello is a reporter for The Maine Wire. She has degrees in journalism and political science from the University of Maine. Her writing has appeared in Reason, The Washington Examiner, and various other publications. Got news tips? Contact Katherine at krevello@mainepolicy.org.

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