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MLA Legal Appeal Argues NMFS Did Not Follow the Law

On January 10, the Maine Lobstermen’s Association (MLA) and its supporting intervenors filed final briefs in the U.S. Court of Appeals for the District of Columbia Circuit. The MLA is appealing D.C. District Court Judge James Boasberg’s September 8, 2022 ruling against the MLA. The MLA’s appeal is led by Paul Clement, former U.S. Solicitor General and a leading Supreme Court advocate.

The MLA is continuing its legal challenge to the National Marine Fisheries Service (NMFS) regulations that would erase Maine’s traditional lobster fishery. MLA argues that Judge Boasberg’s opinion failed to address NMFS’s disregard for the law when it used science and assumptions to develop risk reduction mandates for the lobster industry based on worst-case scenarios rather than outcomes that are reasonably certain to occur. NMFS also failed to assess the economic and social costs of its actions.

A six-year delay in whale regulations does not eliminate the threat to the Main lobster fishery (NOAA photo)

The MLA’s appeal will go before three judges — Judge Katsas, Judge Rao and Judge Ginsburg — who will hear oral arguments on February 24. The MLA is backed by three intervenors (Maine Department of Marine Resources, Massachusetts Lobstermen’s Association, and Maine Lobstering Union) and two Amicus Curiae (Maine State Chamber of Commerce and state of New Hampshire). On the opposing side, NMFS is supported by three nongovernmental group intervenors (Center for Biological Diversity, Defenders of Wildlife and Conservation Law Foundation).

As stated in the MLA’s January brief, “NMFS found its draconian conservation framework necessary only because it repeatedly applied a thumb on the scale in favor of the species (rather than looking at the data objectively) and selected worst-case (rather than realistic) scenarios that are concededly unlikely. The statute does not support that approach, and the mere fact that “scientific data” were considered as part of this skewed and misguided inquiry does not suffice.”

The MLA’s brief goes on to argue that the ten-year conservation framework that would reduce the risk of whale entanglement from lobster gear by 98% is not supported by the Endangered Species Act. “Instead, under the statute as written, if there is a clear threat of jeopardy to the species (based on an objective assessment of the action’s likely effects), the proper course is for NMFS to propose “reasonable and prudent alternatives,” which the agency must test for economic viability. If no such alternatives exist, either NMFS or another party can seek an exemption from the Endangered Species Committee, which has the inestimable advantage of bringing the judgment of politically accountable officials to bear before an industry — and, here, an entire way of life — is eviscerated.”

The MLA reply brief also notes that the six-year pause before any new federal whale protection measures can be implemented that wa passed by Congress as part of the Omnibus Budget Act in December 2022, does not diminish the urgency to correct NMFS’s serious errors.

“To be sure, the recent legislation only delays NMFS’ efforts to follow through on its “commitment” to impose additional restrictions on the lobster fishery, and it does not address the underlying biological opinion or NMFS’ final rule implementing the conservation framework’s first phase. This litigation thus remains necessary to address the underlying errors and permanently resolve all of MLA’s objections to the framework (and permanently eliminate the misguided worst-case-scenario mode of analysis that has infected the entire process).” The briefs submitted by the MLA and its intervenors are available at Save Maine Lobstermen.

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