AUGUSTA — “Courts, as a general matter, ought to defer to an agency’s scientific or technical expertise.”
Quoting a 2005 court decision, Maine Attorney General Aaron Frey and colleagues made that argument in a brief filed last week on behalf of the Maine Department of Marine Resources (DMR) in a lawsuit seeking to impose new limits on commercial lobster fishing in order to protect endangered right whales.
The National Marine Fisheries Service (NMFS), they argue, should be allowed to continue work on a “complex and ongoing federal rulemaking process” to improve fisheries regulations without undue interference.
The backstory: In response to a finding that too many whales have died (the number exceeds a threshold called Potential Biological Removal), “DMR completed a thorough analysis of the risks associated with the transit of right whales through the Gulf of Maine” and submitted a proposal to NMFS in December 2019 for inclusion in a process that is expected to be complete in May 2021, the attorneys wrote.
In other words, the work on reducing any risk is ongoing. This lawsuit filed by conservation groups seeks to speed up the timeline.
In April, Judge James Boasberg held that NMFS violated the federal Administrative Procedure Act and the Environmental Protection Act in 2014 when it issued a required biological opinion without the necessary incidental take findings. It was a narrow decision that did not “make any finding of ‘take’ of right whales by the fishery,” the DMR brief notes.
That was the first phase, a “liability phase,” of the court action that ended with that decision in April, DMR Commissioner Pat Keliher explained in a web meeting of lobster management Zones A and B June 22. A decision on the next phase, ordering a remedy, has not yet come down.
The plaintiffs have asked for the 2014 biological opinion to be vacated. That, Frey and his colleagues argue in their brief, could bring “disruptive, inequitable consequences to both the American lobster fishery and to the right whale.”
Consequences to the fishery are obvious — required transitions to more expensive, possibly dangerous gear, trap limits or closed areas. But the whales could also lose out if the existing framework is vacated, because it “contains features helpful to the right whale,” including acoustic monitoring, aerial surveys and disentanglement activities.
Instead, Maine DMR is asking the court to remand the matter to NMFS and let the existing biological opinion stand until a new one is issued.
“Because there is no evidence that the Maine lobster fishery has harmed right whales in the last 15 years, there is no reason to believe that interim injunctive relief or other mitigation measures in Maine waters would avoid or reduce the incidental take of right whales… As Plaintiffs acknowledge, there is more carefully circumscribed relief available to protect right whales from harm in the American lobster fishery.”
Economic consequences, such as damage to the lobster industry, are not allowed to be considered if action is needed to protect a species under the Endangered Species Act, Keliher has said.
And, in litigation under the act, the tests for whether to grant an injunction are to “tip heavily in favor of protected species,” according to precedents cited in the DMR brief.
But also, Frey and colleagues argue, “in light of the ‘extraordinary nature of the injunction remedy,’” the ability to halt otherwise legal activity, the court’s power is to be exercised “as narrowly as possible.”