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2021 Biological Opinion Invalid But Lobster Fishery Remains Open for Now

Maine’s lobster fishery will continue to operate despite a July 8 federal court ruling that found the National Marine Fisheries Service (NMFS) violated the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA) when it issued its 2021 Biological Opinion (Biop) and Final Rule for the lobster fishery.

This decision flows from the lawsuit that was originally filed against the federal government by three environmental groups claiming NMFS has not done enough to protect endangered North Atlantic right whales from accidental interactions with lobster gear. In September 2021, the environmental groups amended their original claims to challenge the 2021 Biop and Final Rule, again asserting NMFS was not meeting its obligations to protect right whales. The Maine Lobstermen’s Association (MLA) filed a separate lawsuit in September 2021 challenging the science underpinning the 2021 Biop and Final Rule. There is no ruling yet in the MLA’s case.

Environmental groups are claiming victory, while the MLA calls the recent decision a “mixed bag.” The Court ruled that certain aspects of the 2021 BiOp and 2021 Final Whale Rule are invalid. However, the court did not immediately shut down the lobster fishery or decide what action it will take to fix NMFS’s legal violations.

Under the ESA, a Biop must be in place for the federal lobster fishery to operate. However, the Court stated that its “findings at this juncture do not dictate that it must immediately shutter the American lobster fishery; indeed, it is cognizant of what a weighty blow that would inflict.” Instead, the Court has requested that the parties submit additional briefs for consideration before it decides on next steps.

After the July court ruling, even more is riding on the MLA's legal case against NMFS. MLA photo.

The judge granted three of the environmental groups’ six claims as the basis of invalidating the 2021 Biop and Final Rule. First, NMFS did not make a valid “negligible impact” finding under the MMPA that any incidental take from the fishery will not adversely affect right whales. Second, NMFS did not issue a legal Incidental Take Statement (ITS) in the Biop, which is required for the lobster fishery to operate. Third, NMFS did not reduce right whale mortality and serious injury to below potential biological removal (PBR)PBR within six months of implementing the Final Rule, which is required under the MMPA.

The judge wrote, “The crux of the problem is that the 2021 BiOp projects that in the coming years the American lobster fishery will continue to potentially kill and seriously injure North Atlantic right whales at over three times the sustainable rate. This is expected to occur even after the implementation of the 2021 Final Rule amending the ALWTRP and even though zero lethal take is authorized. . . . The Court also finds that the 2021 Final Rule did not attempt to meet the take-reduction measures that it was obligated to under the MMPA within the required timeline. The Court therefore declares the 2021 BiOp and 2021 Final Rule invalid.”

The judge noted that “the Court recognizes that this may seem a severe result for the lobster industry and NMFS. But no actor here — neither the Court nor the Service — operates free from the strict requirements imposed by the MMPA and ESA.”

Senior attorney for plaintiff Defenders of Wildlife Jane Davenport said “he court’s decision recognizes what has ignored for decades — that Congress clearly intended to protect right whales from the lobster gear entanglements that are driving the species toward extinction just as surely as whaling nearly did.”

The MLA lawsuit challenges the arbitrary fashion in which NMFS has treated science throughout the BiOp and rulemaking process. It also objects to NMFS’s unsupported finding that the lobster fishery is harming right whales in violation of the law. The MLA believes that NMFS has overestimated the lobster industry’s risk to right whales.

The MLA’s lawsuit describes how NMFS cherry-picked the science, often using unsupported assumptions, to justify its mandate for Maine’s lobster fishery to reduce its already minimal risk to right whales by 98%. MLA claims that NMFS also wholly neglected mandatory legal requirements to assess the economic and social costs of their actions. The Court acknowledged that, after further review, NMFS may find “that projected take is in fact lower than originally estimated.”

MLA’s executive director Patrice McCarron noted that, “This is precisely why MLA filed its own lawsuit against NMFS. The Court’s ruling in the environmental groups' case is based on flawed assumptions and inflated hypothetical estimates that are unsupported by the agency’s own data. These are issues that MLA believes the court must direct the agency to examine rigorously.”

The MLA is encouraged that the Court is “ognizant of the potential effects of this ruling on the lobster industry — and on the economies of Maine and Massachusetts” and that in coastal Maine, “the lobster supply chain has an economic impact . . . of $1 billion annually” and benefits numerous fishermen and their families.

“We are encouraged that the Court has not shut down the lobster fishery and will hear from all of the parties before it makes any decisions about the future of the lobster fishery,” stated McCarron. The Court schedule for parties to submit briefs on how to resolve this case starts in mid-August and ends in late October. A decision would be forthcoming after that.

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