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Steaming Ahead - October 2022

I have to say, September was one hell of a month. The bad news started when NMFS informed us that it had revised the risk reduction model with new right whale data and new assumptions on where fishing effort takes place. The result, they told us, is that our fishery achieved only a 50% risk reduction and not the 60% the agency had originally estimated.

Then NMFS walked us through what it will take for the lobster fishery to achieve a 90% risk reduction. The scenarios are downright scary. We learned that even closing all federal fixed gear fisheries from Maine to Florida does not achieve a 90% risk reduction. Combining the closure of all federal fixed gear fisheries with removal of half of all vertical lines and requiring those remaining lines to be 75% weak rope gets you to 94%. Obviously, that is not doable.

The Maine Lobstermen's Association will not give up. Photo by T. Bennett, Bangor Daily News.

As if this isn’t bad enough, on the same day NMFS described the magnitude of change it will take to reach a 90% risk reduction, Judge Boasberg ruled in the MLA’s case and denied every single one of our claims. To make matters worse, he did not actually rule on the substance of our claims that NMFS misused the science. Instead, he simply ruled that the federal government gets deference — if NMFS explains why it used science in a certain way and if NMFS calls it the best available science, then that is all the agency needs to do to comply with the Administrative Procedures Act.

The Judge wrote, “NMFS reasonably explained how it estimated the right-whale population and modeled that population into the future, drawing on what it rationally assessed was the best available data and submitting its methods for peer review. That is all that the Administrative Procedure Act requires.” So apparently crap in = crap out is OK as long as you explain why you did it even if your explanation is riddled with poor assumptions that contradict each other and have no basis in reality.

The MLA has been closely involved in the federal whale management process for more than 25 years. We, like the rest of you, are dealing with the shock of a 90% risk reduction which we know will devastate the industry. We have worked tirelessly over the last five years to prevent this day from happening. And the legal and regulatory systems have let us down.

The Marine Mammal Protection Act and the Endangered Species Act (MMPA and ESA) leave little breathing room for this fishery to survive. We cannot avoid complying with these laws because right whales are in decline and our gear does have the potential to harm a right whale.

NMFS must take action when required under the MMPA and the ESA. NMFS does have some discretion, however, on how it meets the legal mandates. Yet any time the agency has had a choice on how to interpret data or how to frame an assumption, it consistently chose options that assume the worst for right whales, thus causing unnecessary harm to the lobster industry. And now Judge Boasberg has said that is OK, giving NMFS a blank check to move forward implementing these laws based on unrealistic assumptions without any repercussion. This is just plain wrong!

This is why the MLA sued. NMFS does have discretion to use its science to reflect scenarios that are reasonably certain to occur, rather than assuming only doom-and-gloom scenarios that have no basis in reality. I cannot fathom how a government agency whose mission includes supporting productive and sustainable fisheries would continually choose options that will decimate a sustainable fishery.

Fundamentally the MLA believes that Judge Boasberg got it wrong when he denied MLA’s claims. So we have appealed his decision. The MLA is developing an aggressive strategy to move this case through the federal Appeals Court. And if the Appeals Court does not agree with us, we are prepared to take the case all the way to the Supreme Court.

The lobster fishery and its stewardship practices sustain both the lobster resource and the right whale population. We know that the right whale population doubled at a time when the lobster fishery was executed at a very similar scale and with the same gear we fish today. We know that right whales are rare in the waters where we fish and that there is no documented case of a right whale dying due to entanglement in our gear. We know that there hasn’t been a documented entanglement since 2004; we would have noticed an entangled right whale in Maine given the constant use of our coastal waters. We know that any model that directs managers to remove every piece of fishing rope from all East coast fixed gear fisheries in order to protect right whales does not pass the straight face test.

The MLA does not believe that the laws of our nation ever intended to allow a government agency to disregard actual data and eliminate our lobster fishery.

This litany of bad news has only served to strengthen MLA’s resolve to right this wrong.

We will not let the Court’s ruling wipe out a sustainable, historic fishery that is the economic lifeblood of the coast. We will continue to work closely with our legal team, the state and our Congressional delegation to ensure that you and your children will be able to fish as your fathers and grandfathers did before you.

The last several years have shown me just what Maine people are made of. From a $20 check given by a young Islesford child to Ready Seafood’s generous contributions, Maine individuals and businesses have donated their money, their time and their selves to the Save Maine Lobstermen campaign in order to protect what is so precious to them, Maine’s lobstering heritage. The MLA wants each supporter to understand that we will not back down.

The Court may have knocked us down in this round, but we are up on our feet again. We will not back down because this industry is worth fighting for. As always, stay safe on the water.


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