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Steaming Ahead September 2019

On August 30, the MLA notified the National Marine Fisheries Service (NMFS) that we would not be a part of their effort to put the full responsibility for the right whale decline on the lobster fishery. I know that there has been confusion about how this issue unfolded, so I will provide some background here. First, the MLA has been leading the fight against whale rules that unfairly target Maine lobstermen for more than 20 years. The MLA has full access to a talented legal team, state and federal political leaders and government agency staff. The MLA is by far the most experienced and knowledgeable organization on the right whale issue in Maine. Though not widely publicized, the MLA regularly meets and talks with NMFS, Maine’s Congressional delegation, our legal team, scientists and others substantively involved in the right whale problem. We know what’s going on because we make it our business to talk to senior decision makers as well those who are in the trenches on this important issue. The MLA’s action is a result of careful analysis of the facts, the law, and the political environment against which the recent spike in right whale deaths will be judged. Armed with that, we’ve been working to ensure that Maine lobstermen are treated fairly in the management process. I know many lobstermen have called on the MLA to fight for the sake of fighting, to tell NMFS “No” and simply refuse to work with regulators. While tempting and certainly much easier than the work we actually do, the MLA’s goal is to take actions that will improve things for Maine lobstermen. Like it or not, this includes understanding the rigid legal framework that sets the parameters for discussion. You can complain all you want about how ridiculous the process is or how out of touch various proposals seem to you. In reality, if you aren’t on top of the facts and don’t understand how they influence the legal process and if you don’t lay the groundwork to make a case based on science and fact, your efforts will result in little more than letting off some steam.

Patrice McCarron

Patrice McCarron works tirelessly to protect Maine's lobster industry.

The reality is that the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA) are both very protective of marine mammals and act as a vise grip on federal and state agencies. Advocates for right whales know this, which is why they brought suit early in 2018 against NMFS to declare its 2014 non-jeopardy finding for the American lobster fishery to be illegal under the ESA. Just so we are clear, a finding of jeopardy would mean that NMFS either ceases to permit the lobster fishery or mandates draconian regulatory measures. This is why the MLA has intervened to represent Maine lobstermen in that case. I have no doubt that the current rulemaking underway by NMFS to reduce risk to right whales from the lobster fishery is a direct result of this legal action. In its quest to identify management options for the lobster fishery that would avert a new jeopardy finding, NMFS buried the Atlantic Large Whale Take Reduction Team (TRT) with new information in the two weeks leading up to a critical meeting in April. Some of the new information NMFS provided made no sense to us, but NMFS refused to discuss its methodologies to explain why it set a risk reduction goal that assumed the Maine lobster fishery presented the highest risk to right whales of all human causes. The MLA wrote a letter to NMFS before the meeting to express our strong concerns over this goal and the management process. NMFS ignored our protest and instead issued a threat: either reach agreement on how to meet the unrealistic risk reduction goal it established, or lose our only opportunity to weigh in on management options that would avert a jeopardy finding in the new biological opinion for the lobster fishery planned for publication this fall. Against this backdrop, Maine’s TRT representatives worked hard to ensure that ropeless fishing and trap reductions (which the environmental caucus favored) would not be mandated as part of the agreement NMFS demanded. We understood that Maine ultimately would have to further reduce vertical lines and consider options to deploy weakened rope. The bigger question was how to right size those measures to address the actual risk posed by our fishery — not the arbitrary 60% reduction stipulated by NMFS. While right whales are extremely rare in Maine, we know that they transit the waters of the Gulf of Maine to get to their favorite places such as Cape Cod Bay and the Gulf of St. Lawrence, and we cannot argue that whales are at no risk of entanglement in Maine waters. We fully agree with our members who have been adamant that the rules contemplated by NMFS are over-reaching and could have devastating impacts on our fishery and communities. We have challenged NMFS on the 60% risk reduction target since it was first announced because it doesn’t make sense. But no one was listening. So we went back to the data. The MLA drew on NMFS’s own data to figure out what was really going on with right whale entanglements. Specifically, we wanted to know more about the entanglement cases for which a fishery, gear type or country could not be identified. Since these cases comprise the majority of right whale entanglements, gaining a deeper understanding might shed some insight on the type of fishing gear involved — and on whether NMFS’s assumption that due to Maine’s stature as the biggest fishery, it must pose the greatest risk to right whales. To our surprise, our results revealed significant errors in NMFS data. Furthermore, NMFS’s failure to present its data fully and accurately misled the TRT during the crucial April meeting. As a result, the TRT reached a “near-consensus” agreement that is in conflict with NMFS’s own data. NMFS is required to use the best available information, so these new findings provide us with substantive information with which to challenge NMFS’s actions. We have already presented our findings at public meetings held by NMFS on the scope of its proposed rulemaking, and we will submit them in writing for the official administrative record on which NMFS must base its decision. This new information does not mean that Maine is off the hook in identifying management measures to help right whales recover. The species is in decline and Maine must take responsibility for our role. However, the lobster fishery alone cannot solve this issue. NMFS must ensure that the Canadians, the shipping industry and other fishing gear sectors join us in taking steps to correct this decline. The MLA has been hard at work on this for a very long time. Our decision to withdraw from the April TRT agreement was not taken lightly. It reflects many hours of meetings and research, the advice of an amazing legal team, and a whole lot of piss and vinegar. Don’t for one second doubt that the MLA will continue to push, and push hard, as Maine’s lobster fishery faces one brick wall after another. The MLA is grateful for the outpouring of support from so many who care deeply about the Maine lobster fishery including Governor Mills, Maine’s Congressional delegation, Maine DMR and many lobstermen and community members along the coast who continue to demand accountability from NMFS for its actions. I urge you to read MLA’s letter to Mr. Oliver in full so that you can understand the sound, fact-based challenge we are making on behalf of Maine lobstermen and right whales. To all who support the MLA, thank you. This work would not be possible without you.


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