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Steaming Ahead - August 2022

This summer is shaping up to be a stressful lobster season. Profit margins are thin. The cost of nearly everything is spiraling ever higher. The core operating costs for lobstermen — bait, fuel and supplies — have skyrocketed. In stark contrast, the looming recession and high inventory of lobster have caused a rapid, steep drop in the boat price. Having a good business plan and knowing when your boat will make money for you will be essential to remaining profitable this year.

And if that is not enough, there is the continued worry about what future right whale conservation measures will mean for each lobsterman. In late July there were rulings from two different courts — on the environmental organizations (eNGO) and Maine Lobstering Union (Union) cases — with the sobering news that more will need to be done to protect right whales. There is still no ruling in the MLA case. With all the stress you are under, please know that the MLA continues its fight to ensure a future for Maine’s lobster fishery. The MLA’s lawsuit seeks a course correction from National Marine Fisheries Service (NMFS) so that the risk reductions lobstermen are asked to meet more closely match the actual risk from our fishery.

The MLA is waging its legal fight for today's lobstermen and for the next generation. MLMC photo.

The MLA’s lawsuit sets the facts straight on known causes of harm to right whales and lays out how NMFS cherrypicked the science, often using unsupported assumptions, to justify its mandate for Maine’s lobster fishery to reduce its already minimal risk to right whales by 98%.

The MLA’s lawsuit is aimed at making sure that Maine lobstermen are only required to reach risk reduction goals that match up with the scientifically-documented risk posed by our fishery. It also demands accountability from an agency that has accepted the fable, in spite of contrary scientific evidence, that vertical lines in Maine waters are an existential threat to right whales that only ropeless fishing can fix.

In late July the District of Columbia District Court ruled in the environmental organizations’ case that both the 2021 Biological Opinion and Final Rule are invalid. There is no way to sugarcoat this outcome. It is extremely concerning.

The federal lobster fishery cannot be authorized without a legal Biological Opinion in place. Furthermore, meeting the mandates of the Endangered Species Act and the Marine Mammal Protection Act with NMFS’s current interpretation of the science is nearly impossible. Fortunately, the Court is allowing the lobster fishery to continue while it is briefed on potential solutions that will bring the Biological Opinion and Final Rule back into compliance with the law. The Court has set a schedule for briefs to be filed beginning in mid-August and wrapping up in late October.

In the meantime, the MLA, intervenors on our side (state of Maine, Massachusetts Lobstermen’s Association, Lobstering Union), and NMFS have all asked the Court to rule on the MLA case before deciding the remedy for the environmental organizations' case. The court has requested briefs on this matter to be submitted for consideration in early August. The parties hope to convince the Court that it is imperative for NMFS to get the science right before it asks NMFS to revise the Biological Opinion. As this unfolds, the importance of MLA’s case becomes more clear. If the Court sends the Biological Opinion and Final Rule back to NMFS without ruling on MLA’s case, then the “fix” will continue to be based on the agency’s flawed use of data. If the underlying scientific basis is not remedied, the result will produce an even harsher outcome for the lobster industry.

There’s not a lot of wiggle room in all of this for anyone. NMFS must comply with the Endangered Species Act and the Marine Mammal Protection Act. Given the dire status of the right whale population and the continued occurrence of serious entanglements that cannot be traced to a fishery, these laws require that more be done to protect right whales.

It is unrealistic to think we could change the Endangered Species Act or the Marine Mammal Protection Act. But through the Court, we have an opportunity to change how NMFS implements these laws.

The MLA’s lawsuit demands that NMFS meet the legal requirements in both laws that call for it to use the best science available. The science shows Maine lobster gear has never been known to kill a right whale or even entangle a whale since 2004. It shows that since 2015 U.S. vessels strikes have killed or seriously injured six whales compared to zero incidents documented in U.S. commercial fisheries. It reveals that Canadian fishing gear continues, by far, to be the predominant gear removed from entangled whales. NMFS is also not properly accounting for the science that shows right whales are moving away from where Maine lobstermen fish and will move even further away by 2050. Or that right whales are adapting to a shifting climate and are once again successfully foraging and producing young.

The agency also deliberately ignores the fact that right whales perish from natural causes like shark predation, while also showing up in unexpected places, like Europe and the Gulf of Mexico, indicating that potentially important habitats are not being surveyed. These animals should not be considered dead, as NMFS classifies them, simply because they may have migrated away from their prior range. I wish we could make this all go away, but that is not possible. The MLA will continue to push for accountability and conservation plans based on sound science so that Maine lobstermen and future generations can continue our proud heritage.

The MLA has the clout and the legal expertise to make a difference, but we can only be successful if we have the funds to do so. Our Save Maine Lobstermen campaign is critical to making this happen. We would be honored to have your support.

As always, stay safe on the water.

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