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Historic Congressional Action Hits Pause on New Whale Rules

The Colson Family from Corea, Maine. Photo courtesy Cheryl Clegg.

Maine’s Congressional delegation, working with Governor Mills, achieved what some might call a “Christmas Miracle” for Maine’s lobster industry. The Omnibus federal funding bill, which Congress approved in late December, included a policy rider that halts implementation of new whale rules in the lobster and Jonah crab fisheries for six years, until December 2028. It also authorizes $50 million for scientific research, monitoring and technology development to address questions lobstermen have been asking for years.

“I’ve never seen a worse case of regulatory overreach to address a problem and blame an industry that is not at all responsible for a problem,” noted Senator Susan Collins. “I’ve also never seen the Maine delegation, which is ideologically diverse, and the Governor more united to protect an iconic way of life in the state of Maine.”

With this pause, Congress prevents the implementation of any new whale rules before December 2028, and allows the lobster fishery to continue to operate while a new, lawful plan — based on realistic assumptions instead of worst-case scenarios — is developed. The action by Congress recognizes what the Maine Lobstermen's Association (MLA) has said all along: the federal rulemaking process intended to protect right whales is broken.

It does not mean the lobster industry’s fight is over. The MLA lawsuit against the federal government will proceed. In its court case, the MLA has argued that the Biological Opinion and its ten-year whale conservation plan developed by the National Marine Fisheries Service (NMFS) is unlawful because its underlying science is premised on “worst case scenarios” rather than those that are “reasonably certain to occur,” as required under the ESA. In its legal challenge, the MLA contends that the plan, if it stands, could eliminate Maine’s lobster fishery while doing nothing to reduce the unacceptably high number of right whale deaths occurring in Canadian waters and from vessel strikes. “The Supreme Court has already held—unanimously, no less—that a central purpose of the ESA provision at issue “is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives,” wrote the MLA.

To ensure progress is made during the six-year pause, Congress has appropriated more than $50 million in new funding. According to Senator Collins, the funding includes $10 million for additional research and monitoring in the Gulf of Maine to “show that the right whale is following its food, the plankton that it eats into colder Canadian waters.” There is another $22 million to help to pioneer innovative gear and an additional $20 million that will provide for development of technology, gear and other research.

Senator Angus King noted, “one of the most frustrating things about this is that the lobster industry was in effect sentenced to economic death, based upon no evidence, no proof… So, one of the major things for me is going to be to work with all the federal agencies to develop better data. I think it’s going to show… that we may not need to do radical gear modification, if indeed, the whales aren’t in the Gulf of Maine to any significant degree and aren’t really at risk.”

“The MLA is encouraged that Congress recognizes that the federal rulemaking process intended to protect right whales is broken,” said Patrice McCarron, MLA executive director. “The Maine lobster fishery is not driving the right whale population decline, and the species cannot be saved by unlawfully overregulating a fishery that, according to federal data, has never been linked with a right whale death…. And we are incredibly grateful for the extraordinary efforts of the Maine delegation and Governor Mills who worked to ensure that lobstermen can continue to fish a new, lawful plan is developed.” The news has come as a sigh of relief for lobstermen across the state.

“I see a community that is optimistic about the future today. Both for our lobster industry and for right whales,” said Cape Elizabeth lobsterman and scientist, Curt Brown.

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