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Appeals Court Reinstates LMA1 Closure

Photo courtesy: The University of Maine

By MLA Staff

On November 16, the United States Court of Appeals for the First Circuit issued a ruling to reinstate the 967-square-mile Lobster Management Area (LMA) 1 closure.

The Appeals Court determined that Bangor District Court Judge Lance Walker’s October ruling to delay implementation of the LMA 1 closure was based on a misunderstanding of the record, and that the court over-stepped its role in rejecting the judgment of the agency charged by Congress with the protection of whales — the National Marine Fisheries Service (NMFS).

The court noted that, “Congress has placed its thumb on the scale for the whales.”

In response to the ruling, Maine Lobstermen’s Association (MLA) president Kristan Porter said, “The MLA is extremely disappointed with the Appeals Court ruling. This massive closure in LMA1 will create economic hardship for too many Maine lobstermen who have already invested in gear, rigged up, and are fishing these waters. “

The state agreed. “This industry is suffering from whiplash, trying to change plans based on these rapidly evolving court decisions,” said Department of Marine Resources (DMR) Commissioner Patrick Keliher. “Moving gear around 30 miles off-shore at this time of the year also poses a serious safety risk for fishermen. Fishermen’s lives are at stake and NOAA and the courts have an obligation to take fisherman safety into consideration when they make these decisions.”

In its ruling to reinstate the closure, the Appeals Court considered several factors including whether there is a strong likelihood that the case will succeed on its merits and if there is likely to be irreparable harm if the closure is not implemented.

On the merits of the case, the Appeals Court concluded that NMFS’s justification for the LMA1 Closure made it “likely that the Agency ruling at issue here will be sustained given the deference that a court must accord to executive agencies carrying out congressional mandates.”

On the issue of irreparable harm, the Appeals Court noted that there are two competing interests: harm to right whales and harm to lobstermen.

The Court wrote, “The difficult question, then, is how does one balance that increased risk of impeding Congress’s aims and increasing right whale fatality against the certain risk of economic harm to the plaintiffs? In this instance, we answer that question by looking to Congress for guidance,” before noting Congress’s “plain intent . . . to halt and reverse the trend toward species extinction, whatever the cost.”

The Appeals Court also reasoned that if any right whales are lost or presumed lost because the LMA 1 Closure was not implemented, NMFS then may need to implement more stringent whale conservation measures which “could cause lobster harvesters additional harm.”

“This decision foreshadows the grave future our lobster fishery faces if NMFS’s 10-year whale plan is not rescinded in favor of a plan based on sound science,” said MLA executive director Patrice McCarron. “The 10-year whale plan that the federal government has adopted will not protect the right whales, but it will eliminate the Maine lobster fishery. It is a lose-lose for all.”

Commissioner Keliher emphasized the need for the state to remain focused on a lawsuit that is potentially even more impactful than the Union lawsuit. “As tough a loss as this is, the state will continue to focus its legal resources on the case in the D.C. District Court that challenges the biological opinion and has the potential of a complete fishery closure. Those stakes are extremely high and demand our full attention,” Commissioner Keliher noted.

The LMA 1 closure is now in effect and the Appeals Court has sent it back to Judge Walker “to resolve, if necessary, any disputes concerning the prompt removal of the banned gear from the LMA 1 restricted area. Given the already lost time and the short period remaining for the seasonal closure, we encourage the parties to act promptly.”

In its announcement that the LMA 1 closure was in effect immediately based on the court’s ruling, NMFS stated, “Given the capacity of offshore fishing vessels to remove and relocate trawls as well as potential weather and safety concerns, we anticipate it could take up to two weeks for all lobster and Jonah crab trap/pot gear to be removed from the LMA 1 Restricted Area.” DMR has stated that it will confirm the timing of the closure and will communicate pertinent details to the industry when they are available.


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