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First Circuit Court resumes ban on lobster fishing gear in Maine waters

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Lobster fishing gear is once more banned from a roughly 1,000 square mile area of federal water off the coast of Maine after an order issued by  the U.S. Court of Appeals for the First Circuit on July 12. The ruling vacated a preliminary injunction, issued by the U.S. District Court for the District of Maine in October 2021, which suspended federal rules prohibiting the use of vertical buoy lines and seasonally closing federal waters to lobster fishing.

The National Marine Fisheries Services (NMFS) released regulations in August 2021 that prohibited lobster fishing with vertical lines in Lobster Management Area 1 (LMA1) between mid-October and January each year. 

The seasonal closure is part of an effort to preserve North Atlantic right whales, which can become entangled in fishing lines and die. 

The preliminary injunction was previously stayed by the First Circuit Court of Appeals in November 2021.

In granting the injunction, the district court found that the NMFS relied too heavily on modeling techniques to predict right whale migration practices and provided little data to make its case.

The appeals court disagreed with this finding.

“In an unusually extensive stay order, we spelled out in detail why we found it unlikely that plaintiffs would prevail on appeal. We determined that the [NMFS] most likely did not exceed the bounds of its wide discretion in factfinding by relying on statistical modeling to define the time and place of the seasonal closure. We also found that the Agency adequately supported the reasonableness of its admittedly imprecise inputs for that model,” the court wrote of its November 2021 finding in its July 12 order.

The court also believed that the plaintiffs in the case–a group consisting of a lobstering union, two lobster fishing companies, and a lobster fishermen–were unlikely to succeed with their suit on the merits because of the authority Congress gave the agency through the Endangered Species Act to pursue regulation for the purpose of conservation.

As the appeals court notes in its July 12 order, the case was expedited because the seasonal closure of the LMA1 fishing area was in effect, potentially leading to the court misreading or misunderstanding the record in the case. 

“So, with the benefit of having our opinion on the stay motion, plaintiffs had the opportunity to file a brief explaining specifically what factual or legal error may have led us astray,” the court continued. 

However, the court found the plaintiffs have not done this, leading to the order to vacate the preliminary injunction.

“Rather, they have filed a brief that makes nearly no effort to engage with our prior opinion. Even with more time and a target to attack, plaintiffs have failed to give us any reason to alter our initial analysis. We therefore vacate the preliminary injunction and remand for further proceeding,” the court concluded.

Gov. Janet Mills administration and Maine’s congressional delegation issued a statement on July 13 in response to the decision. 

“Once again, Maine’s lobstermen have been unfairly targeted by a misguided court decision. Today’s ruling fails to acknowledge the substantial steps that Maine’s lobster industry has already taken to comply with gear change rules to protect the North Atlantic Right Whale. We are deeply disappointed and will continue to strongly advocate for our state’s lobster industry.” Mills, Sens. Susan Collins and Angus King, and Reps. Chellie Pingree and Jared Golden said via the joint statement.

The ruling was the second pertaining to the state lobster fishery in a week. On July 8, the United States District Court for the District of Columbia sided largely with the conservation group Center for Biological Diversity in stating that the regulations behind the seasonal fishery closure, the 2021 Biological Opinion and the 2021 Final Whale Rule, are invalid because they do not go far enough to protect right whales.

While the court granted two of the Center’s six claims, it stopped short of shutting the lobster fishery and acknowledged that the NMFS may find that the take of endangered whales is lower than projected. The Maine Lobstermen’s Association (MLA) called the ruling a “mixed bag” in a statement and said it “demonstrates why it’s more important than ever for MLA to have the financial resources to continue this battle.”

“We are still reviewing the Court’s opinion with our lawyers, but we are heartened that the Court recognizes the great importance of Maine’s lobstering heritage and appreciates the potential and unnecessary harm that could be imposed on the men and women who work so hard to make our industry thrive,” said Patrice McCarron, executive director of the association.

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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