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Steaming Ahead - February 2023

“The Final Rule amending the regulations implementing the Atlantic Large Whale Take Reduction Plan shall be deemed sufficient to ensure that the continued Federal and State authorizations of the American lobster and Jonah crab fisheries are in full compliance with the Marine Mammal Protection Act of 1972 and the Endangered Species Act of 1973.” United States Congress, December 2022

Maine lobstermen welcomed 2023 with a renewed sense of hope. With Congress’s historic action in December, the lobster industry will not be subject to any new whale regulations until December 2028. This is an extraordinary accomplishment and there is no doubt that the Maine delegation’s outrage over NMFS’s mismanagement of the regulatory process and their passion to preserve Maine’s lobster fishery are what made this historic action possible. As Senator Collins pointedly stated, “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.”

The MLA is incredibly grateful to the Maine delegation, Governor Mills and the Department of Marine Resources, all of whom worked tirelessly to make this happen. Maine’s political leaders stood together to persuade Congress to provide the time and resources necessary to obtain data critical to ensuring a fair regulatory process. Importantly, they crafted the legislation to ensure that the Maine lobster fishery continues while this broken regulatory process is fixed. The MLA was proud to be a part of this remarkable effort.

As the news spread, you could feel the collective sigh of relief from lobstermen as they realized the massive risk reduction scheduled to take effect in 2024 was on hold. The bill passed just as NMFS was about to go behind closed doors for the next twelve months to draft a Proposed Rule that would force a 90% risk reduction on the lobster fishery through massive trap reductions, additional weak buoy lines and massive closures.

While the relief is real, the crisis facing the lobster industry is far from over. I believe this issue is more urgent than ever. The Congressional action did not actually solve any of the problems. NMFS’s ten-year whale conservation framework, which mandates a 98% risk reduction for the lobster fishery, remains as much a threat now as it did on the day it was released. As long as NMFS is misusing data and assuming only worst-case scenarios to over-regulate the lobster fishery, our lobstering heritage remains on the cusp of slipping away forever.

We have only six years to find a way to save the lobster industry before NMFS systematically dismantles it (Foster's Daily Democrat photo)

The urgency is that we have only six years to fix a broken regulatory process and find a way to keep Maine’s lobster industry alive before the federal government moves forward with its plan to dismantle the fishery in a misguided attempt to recover North Atlantic right whales. If we do not make tangible progress during that time, Maine’s lobster fishery could be eliminated.

We know that the Maine lobster fishery is not driving the right whale population decline. We know that right whales cannot be saved by unlawfully overregulating a fishery that, according to federal data, has never been linked with a right whale death. Fortunately, Congress gave us many of the tools that we need to reverse the trajectory NMFS has set into motion.

For starters, Congress has validated lobstermen’s concerns about NMFS’s regulatory process. It is one thing for the MLA and a bunch of lobstermen to argue that the government is not doing its job, as we have been doing for years. We were shot down at every turn, which is why the MLA took the extraordinary action of suing NMFS in 2021. After so many have continually dismissed our concerns — including a federal judge — it is surreal to have Congress recognize that the federal rulemaking process to protect right whales is broken.

Second, Congress has given the lobster industry the gift of time. They did not change federal law so that we could all sit back and hope the whale issue magically resolves itself. Congress took this extraordinary action to provide time to fix a broken regulatory process. For the MLA’s part, we now have six years to actually solve some of these problems.

The MLA’s lawsuit is a critical tool that could transform how NMFS treats the fishing industry as it crafts its whale regulations. The lawsuit now has time to work its way through the courts before new regulations are proposed. We have hired the best lawyers in the country to ensure that we have the greatest chance of success at each phase of our legal challenge. If the MLA is successful, the court will direct NMFS to revise its use of data and assumptions to comply with the law. That would require NMFS to look beyond its doom-and-gloom scenarios about right whales and the lobster fishery and analyze scenarios that are reasonably certain to occur.

Third, Congress has appropriated more than $50 million in new funding for much-needed scientific research that will better inform future whale rules and ensure that this process is driven by good science rather than the political interests of national advocacy groups.

As part of this effort, Congress has built in measures to hold NMFS accountable for implementing right whale conservation measures as required by law. NMFS has been directed to respond to the MLA’s 2021 petition alleging the agency used flawed data in violation of the Information Quality Act. It also encourages NMFS to revisit its right whale risk assessment models using scenarios that are reasonably certain to occur rather than worse-case scenarios. NMFS is also directed to continue to work with Canada to develop risk reduction measures that are comparable in effectiveness and to incorporate risk reductions achieved by Canada in the U.S. risk assessment models.

This Congressional support to fill data gaps and demand accountability from NMFS is critical to right many of the wrongs that NMFS has created in its regulatory process. But it is not enough to solve the fundamental issue on its own.

Before Congress acted, the MLA could only execute a legal ‘Hail Mary’ as we raced against the clock to do whatever we could to prevent our fishery from being eliminated. Now the MLA can take a breath, evaluate its options, and strategically move forward to address the most pressing deficiencies in NMFS’s actions.

We have less than six years to bring real solutions to the table — through the courts, through the regulatory system, through new scientific analysis, through the development of gear innovations that will work for fishermen, and by educating the public on the successful stewardship practices Maine lobstermen practice every day to protect right whales.

We cannot do this without your continued help. Supporting MLA’s Save Maine Lobstermen campaign remains as critical as ever. As always, stay safe on the water.

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