A federal appeals court is reinstating a ban on traditional lobster fishing in a nearly 1,000-square-mile stretch of the Gulf of Maine – a win for defenders of the critically endangered North Atlantic right whale and a blow to Maine’s iconic lobster fishery. 

Federal fisheries officials released a new set of restrictions on the lobster fishery earlier this year in an effort to protect the whales, which now number fewer than 340, from deadly entanglements in fishing gear.

Most of the new rules, which include state-specific gear marking and weak points in rope to allow entangled whales to break free, won’t go into effect until May. 

However, the October-to-January seasonal closure, which affects prime winter fishing grounds, was slated to go into effect almost immediately, with fishermen required to remove their gear from the area by Oct. 18.

But last month, in a lawsuit filed by the Maine Lobstering Union and other industry businesses, U.S. District Judge Lance E. Walker granted a temporary restraining order and preliminary injunction, halting the closure until the details and science behind it could be further scrutinized.

The National Marine Fisheries Service and a group of conservationists swiftly appealed to the U.S. District Court in Bangor, asking the court to permit the closure while it reviewed the preliminary injunction, citing new information that the right whale population had declined by another 10 percent last year, from 366 in 2019 to 336 in 2020. 

The district court denied the motion, so the group moved for similar relief in the 1st U.S. Circuit Court of Appeals in Boston. 

COURT: AUTHORITY OVERSTEPPED

In granting the motion, the federal appeals court argued that the district court overstepped its authority by rejecting the judgment of the Fisheries Service, which Congress has charged with protecting endangered marine mammals. 

“While there are serious stakes on both sides, Congress has placed its thumb on the scale for the whales,” appellate judges William Kayatta, David Barron and Gustavo Gelpi wrote in their decision. 

They directed the district court to resolve any remaining disputes concerning the removal of gear from the restricted area. Fisheries officials estimated that the process could take up to two weeks. 

“Given the already lost time and short period remaining for the seasonal closure, we encourage the parties to act promptly,” they wrote. 

Gov. Janet Mills said she was disappointed by the court’s decision and pledged to defend Maine lobstermen in the weeks and months ahead. 

“This sudden closure will cause significant economic hardship for Maine’s lobster industry, will cost hundreds of fishermen millions of dollars, and will have a profound impact on businesses that rely on landings during the lucrative late fall and winter months,” Mills said in a statement.

Erica Fuller, senior attorney for the Conservation Law Foundation, which filed the appeal along with the Center for Biological Diversity and Defenders of Wildlife, celebrated the ruling.

The 1st Circuit’s decision affirms that the best available science and the law demand action now,” Fuller said in a statement. “Right whales can’t wait for the perfect empirical data Judge Walker sought.  The 1st Circuit got it right – entanglements can’t be traced, so where there are whales, lots of lines, and heavy lines, we need fishing restrictions to prevent extinction.” 

The Maine Lobstering Union, however, isn’t giving up its fight.

Dave Sullivan, a top official with the union, criticized the closure and the decision, calling it a “concerted campaign to destroy (the) livelihoods” of lobster harvesters. 

“The bottom line is that this misguided ruling is going to make it even harder for Maine lobstering communities to sustain themselves,” Sullivan said in a statement. “The Maine Lobstering Union will vigorously fight this ruling and continue to have the backs of every family that relies on the freedom to fish in Maine’s coastal waters.”

The union was planning to meet with its legal counsel on Wednesday to determine a path forward.

INDUSTRY SUFFERS ‘WHIPLASH’

Patrick Keliher, commissioner of the Maine Department of Marine Resources, said the industry is suffering from “whiplash” as members try to keep up with the constantly changing plans. 

“Moving gear around 30 miles offshore at this time of the year also poses a serious safety risk for fishermen,” Keliher said in a statement. “Fishermen’s lives are at stake and (regulators) and the courts have an obligation to take fisherman safety into (consideration) when they make these decisions.”

In its initial legal complaint, the union contended that Fisheries Service did not use the best available science when creating the new rules, which are intended to reduce the risk to the whales by at least 60 percent.

Alfred Frawley, the union’s attorney, told the judge that just because Maine is responsible for roughly 95 percent of the lines in the water, that does not mean it should be blamed for the problem in the absence of any supporting data. The agency needs to collect more data, he argued, and consider the closure after analyzing aerial surveillance footage, acoustic monitors and gear distribution data among other measures.

The lawsuit also criticized the regulators for relying on a predictive model that splits unknown mortalities evenly between Canada and the U.S. and attributes all unknown entanglements to the lobster/trap pot fisheries, and doesn’t include surveys from Canadian waters or updated numbers following Canada’s implementation of protective measures in 2018. The agency, it argued, also should have created criteria or a trigger for closing the area if and when a whale is spotted. 

The big-money funders of this ill-advised effort are basing their case on faulty and incomplete science that hasn’t even identified a single right whale sighting or trigger point that would warrant this type of drastic action,” Sullivan said in his statement. 

The last known entanglement in Maine waters was in 2004 (the whale survived), but federal officials and environmental advocates say that is not evidence it’s not happening – it can be extremely difficult to attribute any entanglement or mortality to a specific fishery. The National Oceanic and Atmospheric Administration estimates that about 85 percent of all right whales show signs of entanglement. 

Marine biologists have said the science used is in fact the best available, and stressed that they are required to use the best available science – not the best possible – and that immediate action is needed to save the imperiled species.

Located about 30 miles offshore, the restricted area stretches from about Mount Desert Island down to eastern Casco Bay and is expected to impact about 120 lobster harvesters – roughly 60 who will be displaced by the closure and another 60 who might be affected by the others relocating. 

The late fall and winter months aren’t traditionally the busy season for Maine lobstermen, but for offshore fishermen, the colder temperatures mean harder shells and higher prices, making it a lucrative time of year. 

The Fisheries Service estimates that the lobster harvesters who fish in the area may lose about 5 to 10 percent of their revenue, but lobstermen say that range is a gross underestimate and that the true figure could be 50 percent or higher.

Ropeless fishing, a new technology that sends buoy lines to the surface using acoustic signals, will be allowed in the area but will require a special permit. Ropeless technology is still in the development stage and has not been tested on a commercial scale.

Frawley has said the closure would act “like a tidal wave,” destroying the state’s $406 million lobster industry and the communities that rely on it.

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