A federal court of appeals released an opinion Friday siding with the Maine Lobstermen’s Association in their lawsuit against the National Marine Fisheries Service, a subagency of the National Oceanic and Atmospheric Administration (NOAA).
In September of 2021, the Maine Lobstermen’s Association filed a lawsuit against the regulator alleging that their efforts to protect the North Atlantic right whale were unlawful.
The North Atlantic right whale has been on the endangered species list ever since the classification was established, and according to a recent report, cited in Friday’s decision, there are only about 368 still alive today.
The lawsuit filed by the Maine Lobstermen’s Association argued that the “Biological Opinion” concerning the North American right whale issued by NOAA was based on a “simplistic and false premise” that “exaggerates and arbitrarily inflates the risk posed by the Maine lobster fishery.”
Biological opinions are analyses used by the federal government to inform environmental regulations, but Maine’s lobstermen say NOAA’s right whale opinion is deficient.
The Maine Lobstermen’s Association stated that the NOAA’s analyses was “unlawful” as they “did not rely on the best available scientific information, made erroneous and arbitrary assumptions unsupported and contradicted by data and evidence, relied on an outdated and flawed methodology to model projections of the North Atlantic right whale population, and inexplicably failed to account for either the positive impact of mitigation measures already or soon-to-be employed by the Maine lobster fishery.”
Precipitating from this analysis was a “Conservation Framework” that “includes four phases over 10 years and expects and requires the Maine lobster fishery to ultimately achieve a 98% reduction in North Atlantic right whale mortality and serious injury at the end of phase four.”
That onerous requirement had many lobstermen questioning whether compliance costs would put them out of business.
At the center of the decision released by the federal court of appeals on Friday was the Maine Lobstermen’s Association’s claim that the Biological Opinion “arbitrarily, capriciously, and unlawfully overestimates impact and risk from the American lobster fishery.”
In their filing, the Maine Lobstermen’s Association detailed a number of “errors” in the NOAA’s Biological Opinion that exemplify a consistent use of “overly conservative and worst-case assumptions regarding the fishery’s potential effects, contrary to the recommendations of independent experts.”
The lower court’s decision in the case, which was reversed in Friday’s ruling, found that:
The Court need not and does not decide here that the agency’s approach to the multiple issues in play was the only, or even the best, way of analyzing the data or resolving uncertainty…At this juncture, however, the Court is satisfied that [National Marine Fisheries Service] suitably considered the data available at the time of its action and reasonably explained its scientific conclusions.
In their decision, the lower court argued that the National Marine Fisheries Service only “‘select[ed] the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species'” when “ambiguous or incomplete data left the agency with a judgement call.”
“The agency did not purport to displace the best available data, only to supplement it where the data ran out,” the decision said.
In the opinion released by the federal court of appeals this past Friday, however, this determination was overturned. The court decided that the National Marine Fisheries Service cannot “when faced with uncertainty, give the ‘benefit of the doubt’ to an endangered species by relying upon worst-case scenarios or pessimistic assumptions.”
The key legal provisions referenced by the federal court of appeals state that a federal agency, or “action agency,” must ensure that any action they authorize, fund, or carry out is “not likely to jeopardize the continued existence” of any protected species using “the best scientific and commercial data available.”
In commenting on the National Marine Fisheries Service’s lack of adherence to this statute, the federal court of appeals said:
The statute is focused upon ‘likely’ outcomes, not worst-case scenarios. It requires the [National Marine Fisheries] Service to use the best available scientific data, not the most pessimistic. The word ‘available’ rings hollow if the [National Marine Fisheries] Service may hold up an action agency by merely presuming that unavailable data, if only they could be produced, would weigh against the agency action.
“The presumption [in favor of the species] significantly expands the [National Marine Fisheries] Service’s veto power, prevents the agency from ‘paying attention to the advantages and the disadvantages’ of the action, and invites the unnecessary economic dislocation wrought by worst-case thinking,” the federal court of appeals wrote.
“The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations,” they said.
“It is not the province of a scientific consultant to pick whales over people,” the federal court of appeals declared. “The [National Marine Fisheries] Service must strive to resolve or characterize the uncertainty through accepted scientific techniques, not jump to a substantive presumption that distorts the analysis of effects and creates false positives.”
The Maine Lobstermen’s Association released a statement following the release of the federal court of appeals’ decision, reading in part:
When the Maine Lobstermen’s Association (MLA) made the decision to sue the federal government, we knew it wouldn’t be easy, but we refused to go down without a fight. Today’s decision by the U.S. Court of Appeals is an overwhelming victory for lobstering families and the communities that rely on this industry, and it reaffirms what the MLA has been saying all along – the federal government does not have a blank check to use ‘worst case scenarios’ and disregard actual data in its regulation of the Maine lobster fishery.
The Maine Lobstermen’s Association also reaffirmed its commitment to “ensur[ing] a safe environment in which the endangered right whale can recover” and expressed hope that “this decision will force the National Marine Fisheries Service to go back to the drawing board to develop a plan that uses best available science and accurate data and, importantly, that will protect whales without eliminating the lobster fishery.”