MOUNT DESERT, June 16, 2023 - Maine’s lobster fishers won their challenge to fishing restrictions that were implemented to protect the North Atlantic right whale in a Friday ruling by the D.C. Circuit Court, which held that they were based on unfounded assumptions.
The National Marine Fisheries Service indulged in “worst-case scenarios and pessimistic assumptions to benefit a favored side,” Judge Douglas H. Ginsburg of the US Court of Appeals for the D.C. Circuit wrote for a three-judge panel. “It is not the province of a scientific consultant to pick whales over people.”
“Statutory text and structure do not authorize the Service to ‘generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species’ whenever it faces a plausible range of values or competing analytical approaches.
“The statute is focused upon ‘likely’ outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic. The word ‘available’ rings hollow if the 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.
“We reverse the district court’s grant of summary judgment to the Service and direct the court to enter summary judgment for the lobstermen …”
NMFS imposed seasonal closures, and various limits on fishing gear.
In September 2021, the Maine Lobster Association filed a lawsuit challenging the federal government’s “fundamentally flawed 10-year whale plan that will all but eliminate the Maine lobster fishery yet still fail to save the endangered North Atlantic right whale.”
MLA argued that NMFS overestimated the lobster industry’s risk to right whales by cherry-picking the science by using unsupported assumptions and “worst-case scenarios” to justify its mandate for Maine’s lobster fishery to reduce its already minimal risk to right whales by 98 percent. MLA claimed that NMFS also failed to follow mandatory legal requirements to assess the economic and social costs of their action.
On September 8, 2022, a federal judge in Washington, DC ruled against MLA in an opinion that deferred to the federal agency on all counts without disputing the validity of MLA’s concerns.
In November 2022, the judge ruled that National Marine Fisheries Service (NMFS) would have until December 2024 to issue new rules. However, the Maine congressional delegation and Governor Mills announced in December 2022 that they were successful in securing a six-year “regulatory pause” for Maine’s lobster industry in the Omnibus appropriations bill which would delay new rules until December 2028. President Biden signed this bill into law on Dec. 29, 2022.
On October 11, 2022, MLA announced it retained former U.S. Solicitor General Paul Clement and filed for expedited consideration of its appeal to the D.C. Circuit Court.
On Oct. 1, 2022, the QSJ published a taped interview with Richard Pace, the chief scientist behind the foundational study, “Cryptic Mortality of North Atlantic right whales,” the centerpiece of the environmentalists’ case - that entanglement and ship strikes are the two major causes of the decline of the population of North Atlantic right whales to only about 350 still extant.
But Pace stated in the interview that Right Whales rarely migrate in Maine’s waters.
Finally a good outcome for the lobster industry!