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LMA 1 Seasonal Closure on Hold, For Now

Judge Lance Walker, Press Herald image

Slightly more than a week after Judge Lance Walker of the U.S. District Court in Bangor temporarily halted implementation of a seasonal closure in Lobster Management Area 1 (LMA 1), lawyers for the Secretary of Commerce and National Marine Fisheries Service (NMFS) (the Defendants or Agencies) filed notice that they will appeal the October 16 decision to the U.S. Court of Appeals for the First Circuit. Simultaneously, the Agencies filed an emergency motion requesting that the District Court put its ruling on hold until the appeal is decided. The three environmental groups (Conservation Law Foundation, Center for Biological Diversity, and Defenders of Wildlife) that intervened in this case similarly filed their own notice of appeal requesting that the Court of Appeals stay Judge Walker’s order to pause the closure until their appeal is decided.

The Plaintiffs in this case — the Maine Lobster Union (MLU), Damon Family Lobster Company, Fox Island Lobster Company, and Frank Thompson of Vinalhaven — filed a lawsuit in late September claiming that the Lobster Management Area 1 (LMA 1) seasonal closure is illegal. The Plaintiffs requested Judge Walker to issue a temporary restraining order and preliminary injunction to prevent the closure from taking effect, stating they will suffer “irreparable harm” if it is implemented while their lawsuit is under judicial review. The Plaintiffs also requested the District Court to restrain NMFS from implementing the closure until NMFS can gather additional data and take other steps to demonstrate that a closure is needed. Judge Walker issued an order stopping the closure two days before it was scheduled to take effect but declined to impose any additional requirements on NMFS with respect to a future seasonal closure. The Maine Lobstermen’s Association and Maine Legislative council each filed an amicus brief in support of stopping the impending closure.

The LMA 1 seasonal closure, which was scheduled to take effect on October 18, was mandated by NMFS as part of the final whale rule issued in September to achieve a 60% risk reduction by the Northeast lobster fishery. In their emergency motion, the, the Agencies asked the District Court to “stay its order enjoining NMFS from enforcing a seasonal restriction of vertical buoy lines in a portion of Lobster Management Area 1 (“LMA 1 Restricted Area”).” The Agencies allege that “Implementation of the LMA 1 Restricted Area during the months of October, November, December, and January is critical to NMFS’s ability to meet its statutory mandates under the Marine Mammal Protection Act and Endangered Species Act. In addition, implementation of the LMA 1 Restricted Area is itself essential to protecting the North Atlantic right whale…”

In his ruling to prevent the closure from immediately taking effect, Judge Walker wrote, “I do not conclude today that the Agency, in fact, acted arbitrarily or capriciously in crafting the Final Rule. I find only that the Plaintiffs have shown a strong enough likelihood of success and that their challenge to the proposed seasonal closure of the LMA 1 Restricted Area warrants more fulsome consideration than the preliminary injunction window allows for.”

Pinpointing arbitrary and capricious actions by a federal agency is not a simple task. Under the Administrative Procedure Act, reviewing courts can invalidate agency rulemaking found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” An agency will not be found in violation if a “rational” foundation for its actions can be found, meaning that an agency decision will be upheld as long as there is a rational connection between evidence included in the administrative record and the conclusions drawn by the agency in support of its action.

Governor Janet Mills and the Maine Congressional delegation quickly sent a letter to Secretary of Commerce, Gina Raimondo, reiterating their opposition to the LMA 1 closure and the broader whale rules released in August. “We are writing to bring to your attention a recent order by the U.S. District Court of Maine regarding the National Marine Fisheries Service’s (NMFS) final rule to modify the Atlantic Large Whale Take Reduction Plan (ALWTRP). The District Court has enjoined NMFS from enforcing the closure in the Lobster Management Area (LMA) 1, and we support this decision. Throughout the rulemaking process, we have raised concerns expressed by Maine’s lobstermen and women and other industry stakeholders about the flawed and incomplete data upon which the final rule ultimately relied. Moreover, NMFS’s decision to impose a sudden fisheries closure will cause irreparable harm to the industry, while doing little to achieve meaningful protections for the right whale population. In light of the District Court’s order and the many flaws with the rule, particularly with respect to the LMA 1 closure, we urge you to rescind the rule and resolve these issues,” the letter stated.

 

MLA lawsuit targets entire whale plan

On September 27, the Maine Lobstermen’s Association (MLA) filed a lawsuit against the National Marine Fisheries Service (NMFS) and the Secretary of Commerce in the U.S. District Court for the District of Columbia challenging a recently issued Biological Opinion on the status of the endangered right whale population. The BiOp underpins NMFS’s fundamentally flawed 10-year whale protection plan, which requires a 98% risk reduction within the lobster fishery. The ten-year plan calls for the closure in LMA 1 and steadily imposes more severe protection measures on the lobster fishery in 2025 and 2030, essentially eliminating the traditional fishery.

The MLA’s lawsuit claims that NMFS has persistently ignored science and evidence submitted by the MLA and others that would have enabled the agency to correct the plan’s serious flaws. The MLA is taking direct aim at a pattern of arbitrary actions by NMFS targeted at the lobster fishery, which has influenced measures called for in the 10-year plan and final whale rule.

The MLA’s lawsuit attacks many false assumptions and arbitrary decisions that are embedded in NMFS’s long-term regulatory approach to the lobster fishery. If those systemic errors are not corrected, the lobster fishery will remain the victim of regulation by speculation and subject to future closures and other equally unjustified regulatory decisions. While Judge Walker’s temporary halt of the LMA 1 closure brings a sigh of relief to Maine lobstermen, it does not address a larger issue infecting NMFS's whale plan — the agency’s blatant disregard of the best available scientific and commercial information regarding interactions between lobster gear and the endangered right whales. The MLA believes the agency’s analysis has been biased against solutions short of decimating the fishery. This bias led NMFS to ignore evidence supporting less drastic measures. The result is a series of regulatory actions, such as the LMA 1 closure, that are untethered from the agency’s own data and data supplied to it by experts and stakeholders it is required to consult.

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