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Guest Column: A tough time to predict the future

Patrick Keliher is the Commissioner of the Department of Marine Resources. DMR photo.

I came across this quote from Mark Twain the other day: “Predictions are difficult, especially when it involves the future.” Not a day goes by that I don’t hear a question from a fisherman about what will happen with whales, wind, sustainability, or another big issue facing the industry. My goal is to provide certainty to the lobster industry, but the future right now is impossible to predict and the road to certainty is uphill and difficult. What always impresses me though, is knowing that the Maine lobster industry will lean into the many challenges it’s facing — none of which you want or deserve.


There are many things happening with several court cases, and DMR is working with our legal team to finalize our strategy. As the cases move forward, I will send a message to industry members who are being impacted by right whale rules with a breakdown of what the state focus will be.

As you know, Maine Federal District Court Judge Lance Walker issued an order in October that prevented the LMA 1 Restricted Area from taking effect. This was a rare bit of good news, but very short lived. As I was writing this article the First Circuit Court of Appeals reinstated the closed area and sent it back to Judge Walker with instructions to close the area “promptly.” The First Circuit’s opinion clearly sided with whales over the fishery when it considered relative harms: “And, while there are serious stakes on both sides, Congress has placed its thumb on the scale for whales.”

While the State was not asked to engage in this case, we did follow it very closely. Ultimately, we decided that our focus needed to remain on the larger case because it has much broader implications for the overall fishery, including the potential of an outright shut down. The industry must do the same, as the stakes are too high.

The larger lawsuit in Washington, D.C. was brought forward by the environmental organizations challenging NMFS’s old Biological Opinion. We expected that suit to go away now that the new Biological Opinion and rule are final but, as we know, it’s never enough for the environmental groups. The judge has allowed them to file a supplemental suit, so DMR has now hired outside legal counsel to fully engage in this case. The firm we hired (Nossaman) is out of Seattle and they have great knowledge in the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA) that are driving these challenges. Nossaman has represented a range of clients in these types of cases, including the State of Alaska.

DMR has been granted intervenor status in the D.C. case and we are looking carefully at what our options are (the MLA and MLU are also intervenors). It is important to point out that the case filed in D.C. also targets the fishery in state waters. All lobster fishing effort by Maine license holders is in the environmental organizations’ crosshairs. The MLA has also filed suit in D.C. challenging portions of the Biological Opinion and the Final Rule; we are looking closely at how we will engage. This is an important effort that focuses on the science and data that NMFS is using. DMR has created an extensive record that supports this effort as well as the Maine Lobster Union case. These cases may all converge in front of one judge, but that is yet to be seen.

Governor Mills has been very supportive of our needs and has contributed $230,000 from her contingency fund for DMR’s legal efforts, with a promise of finding additional resources for our growing legal bills.

In October, Governor Mills co-signed a letter with the members of the Congressional delegation to Secretary of Commerce Gina Raimondo urging her to withdraw the final whale rule by highlighting the flawed and incomplete data on which the rule relied. The letter made clear that the closure had the potential to cause irreparable harm to Maine’s lobster industry while doing little to protect right whales. The Secretary’s response was simple, “North Atlantic right whales are in crisis, and we need to take immediate, meaningful actions to mitigate the primary threats to the species: entanglements and vessel strikes.”

DMR is also working to improve the science on which future management decisions will be made. The Governor and the Legislature supported our requests for more staff as well as money for research. We are in the process of hiring new science staff as well as policy support. DMR’s science staff deployed seven archival sound traps in October throughout the Gulf of Maine, including one in the LMA1 Restricted Area, to listen for right whales. Data won’t be downloaded and analyzed until spring or summer 2022.

These sound traps will provide data to better understand right whale habitat use in the Gulf of Maine. The University of Maine’s underwater glider has been active this year in the Gulf of Maine and has had several right whale detections, including in the LMA1 closed area.

Stock Resiliency

If whales were not enough, at its October Annual Meeting, ASMFC’s Lobster Management Board continued work on its addendum to the fishery management plan to build resiliency into the stock. The Addendum considers a trigger-based approach. If a trigger is hit, a management response would be implemented. The ASMFC Technical Committee has recommended that the trigger be based on the result of surveys, including the ME/NH spring and fall surveys as well as ventless trap surveys, and a change to gauge size as the best management response to increase spawning stock biomass. The Lobster Board will review a completed draft of the Addendum at their January 2022 meeting. At that point they can send it back to the Plan Development Team for modifications or approve it for public comment. We will update the industry during the next round of lobster zone council meetings.

Federal Relief

As you also likely have heard, there will soon be $17 million in federal relief funds available for Maine’s seafood industry by way of the Consolidated Appropriations Act. DMR has sought input on the use of these funds from industry associations, advisory councils, and individual businesses, and consistently heard that these funds represent an unusual opportunity to make strategic investments that will improve the long-term viability of the eligible sectors.

The Governor recently announced that she has made an additional $10 million available through grants for Maine’s dealers and processors to support their infrastructure needs. The goal of these funds is to provide dealers and processors support that they did not get from other sources of federal relief funding. Many had to forego needed capital investments because they had to spend money adapting to market and workplace challenges driven by COVID-19. Those funds will be made available to industry as grants in the coming months.

We are working on a plan for spending the Consolidated Appropriation Act money and will be submitting it to NOAA soon for approval. We have received preliminary approval to reimburse all Maine commercial fishermen who renew their licenses for 2022 for the cost of their 2022 fees (license fees, surcharges, and trap tags). We will communicate to you exactly how this will work once our plan is approved by NOAA.

It is my hope that it will take the sting out of my announcement that we will have to raise the price of trap tags given increasing tag costs in recent years – a cost I have resisted passing on to lobstermen for ten years.

LAC and Zone Meetings

At this time, we are scheduling a Lobster Advisory Council meeting for December, with zones re-engaging in January. COVID-19 has made face-to-face meetings impossible and the current news on infections is not great as we close in on winter. In an effort to remain engaged we tried webinars, but those are clearly not the preferred approach for the industry. We are looking at face-to-face meetings with a possible hybrid approach allowing remote call-in, but we are still working on the details. Lorraine Morris, who is filling in for Sarah Cotnoir, has been hired to help support the zones over the coming months. She has already been in contact with the chairs. If you are on a zone council, please keep an eye out for Lorraine’s email.

While Maine’s lobster industry continues to do battle on many fronts, 2021 is shaping up as a good year for the fishery. Consumers continue to recognize Maine lobster as a premium product and demand has remained high. Your continued commitment to conservation and the delivery of a high-quality product is not going unnoticed. The landed value of your product compared to the same time last year was up over $230 million. With all the uncertainty it is nice to see some positive news.

Here’s wishing you all a Happy Thanksgiving, Merry Christmas, and a prosperous, healthy new year.

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