The federal government and a group of conservation organizations filed an appeal this week of a recent court decision that stopped a planned seasonal closure to traditional lobstering in an area of the Gulf of Maine.

The closure, which would have gone into effect Oct. 18, was intended to help protect the critically endangered North Atlantic right whale and would have made traditional, rope-and-buoy lobstering off-limits in the lucrative 967-square-mile zone from October to January. 

The Maine Lobstering Union, Fox Island Lobster Co. of Vinalhaven and Damon Family Lobster Co. of Stonington filed a joint lawsuit against the fisheries service last month in an effort to block the closure, arguing that regulators used flimsy science to justify the restricted area.

In his ruling, issued just two days before the closure would have been implemented, U.S. District Judge Lance Walker sided with the lobstering groups and said regulators had relied on “markedly thin” statistical modeling instead of hard evidence to prove the area they had planned to close was really a highly traveled area for the imperiled whale.

“I find the certain economic harms that would result from allowing this closure to go into effect outweigh the uncertain and unknown benefits of closing some of the richest fishing grounds in Maine for three months based on a prediction it might be a hotspot for right whale(s),” Walker wrote in his ruling. 

The closure is a hotly contested part of a larger set of regulations issued in August by the National Oceanic and Atmospheric Administration aimed at reducing by at least 60 percent the right whales’ risk of dying by becoming entangled in fishing gear.

The recent ruling halted what scientists and environmentalists say was a crucial part of that process.

In their appeal, the federal government and the conservation groups – the Center for Biological Diversity, the Conservation Law Foundation and the Defenders of Wildlife – argue that not only did the National Marine Fisheries Service use the best available science, but also that the lobstering groups did not present any actual evidence of the “certain economic harms” the judge referenced. 

The government estimates that 62 fishing boats set their traps in the proposed closure area, while another 62 boats fish near the closed area and would likely suffer from a reduced catch if the displaced fishermen were forced to set their traps someplace else. The government estimates each of those fishing boats would suffer a 5 to 10 percent loss in earnings.

Fishing groups and the state of Maine, though, say the number of impacted fishing boats and resulting losses is most likely far higher, with as many as 200 boats displaced, and some of them losing as much as half their annual earnings. 

Also in the appeal, the groups claim that the plaintiffs’ criticism of the availability and quality of data to support the restrictions is misplaced. 

The fisheries service admitted that more data would be beneficial to refine the agency’s understanding of right whale distribution, but it argued that the data already available is sufficient. Meanwhile, the agency is continuing aerial surveys and increasing the number of acoustic surveys it will use going forward.

“But, while the agency gathers additional information, the right whale population is continuing to decline,” proponents of the closure said in their appeal.

WHALE POPULATION AT A LOW

The North Atlantic Right Whale Consortium announced this week that the population declined by another 10 percent last year, The Associated Press reported. There were 366 right whales in 2019, and last year that number fell to 336, the lowest reported figure in nearly two decades.

While no right whale entanglements have been directly linked to the Maine lobster industry since 2004, a historic lack of state-specific gear marking and the frequent absence of any gear at all has made it difficult to determine where many entanglements occurred.

“Maine has the highest concentration of all vertical line gear in U.S. waters, and right whales are still using U.S. waters,” the appellants wrote. “(The fisheries service) determined that these facts comprise the best available science. The law is clear that (the fisheries service) must utilize the best scientific data available, not the best scientific data possible.”

All available data confirm that right whales have used the area within the closure period in recent years, they said, noting that offshore fisheries, such as those in the planned closure area, use stronger and longer buoy lines that are potentially more lethal to entangled whales. 

The lobstering groups have until Tuesday to respond to the appeal, and the government and conservation groups’ reply brief is due next Friday, according to Erica Fuller, senior attorney for the Conservation Law Foundation. They expect a decision from Walker shortly thereafter. 

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