Lobster union, Stonington dealer ask judge to stop offshore closure

BANGOR — The Maine Lobstering Union and a local lobster dealer called on a federal judge to halt the closure of nearly 1,000 miles of offshore fishing ground that is scheduled to go in place on Monday.

“The viability of Maine’s entire lobster industry hangs in the balance,” said Alfred Frawley, an attorney who was representing the Trenton-based union and Damon Family Lobster Co., a dealer in Stonington.

The two organizations, along with a Vinalhaven dealer, sued the federal government over the upcoming 967-square-mile seasonal closure that runs from just west of Mount Desert Island near Casco Bay. The closure, which was one of several measures put in place to protect the endangered North Atlantic right whale, will put the area off-limits to traditional lobstering.

Maine lobstermen have long denied that they are the reason right whales are dying and say that closing this area will not help the species rebound.

Today, Frawley made his case to U.S. District Court Judge Lance Walker in a remote hearing. The judge said he’d decide on the matter in the “very near future.”

Frawley called the rules from the National Oceanic and Atmospheric Administration “draconian,” claiming they were not based on the best available science and said that the federal agency shouldn’t “simply regulate for the sake of regulating.”

“The purpose of this restricted area is not to protect the right whale,” Frawley said in the nearly two-and-a-half hour hearing. It’s to spread risk across jurisdictions, “regardless of whether those jurisdictions contribute to the problem or not,” the attorney claimed. He alleged that this was a way to force lobstermen to try out ropeless fishing, a method that gets rid of the persistent vertical lines in the water and is not yet commercially viable.

NOAA should have looked more at other areas of the country where the whales migrate instead of picking on Maine fishermen simply because they have the largest number of fishing lines that run from their traps on the seafloor to surface buoys, according to Frawley.

The attorney hammered on the modeling system that the federal regulators used to come up with the closure, arguing that more data collections, possibly from aerial surveys of the area or more ocean monitoring, should have been used to determine if right whales frequent the area.

Without this lucrative fishing ground in this prime time of the year, lobster-reliant ports like Stonington and Vinalhaven would suffer.

Offshore lobstermen make up for a small portion of the state’s entire fleet, but the business can be a lucrative one. Up to 1.3 million pounds of the Damon Family Lobster Co.’s annual 4 million pounds of lobster sales come from the closed area, according to the company.

“There’s no need for an emergency closure, but the fishermen need emergency relief,” Frawley said. “If their fishing ground closes this winter, many of them won’t be around next winter. Issuing an injunction will simply allow their survival while this important judicial review process is completed.”

Judge Walker did ask if there was anything else that NOAA could have done to confirm the model before enacting the closure. He kept getting “hung up” on that argument by the agency.

“I want to know, in other words, are these predictive models the very best science available to inform the rule?” he asked.

The government’s attorneys Taylor Mayhall and Alison Finnegan both pushed back on criticisms of the modeling system.

The modeling included historical right whale sightings, acoustic monitoring and other data points to determine that this is still a potential hotspot, said Mayhall. From October 2018 to Jan. 31, 2019, there were 15 possible acoustic observations of right whales in the Gulf of Maine and 18 definite observations from October 2019 to Jan. 31, 2020.

She also noted two recent right whale sightings in the Gulf of Maine, including one off Portland on Sept. 16 and a mother and calf in the closure area on Sept. 20. A NOAA spokesperson said the latter was documented by an experienced marine mammal observer aboard a Canadian research vessel that was headed back to Canada from Portsmouth, N.H.

“This area still remains a potential hotspot for right whales during the late fall and early winter months,” Mayhall said.

Research on the area would continue and the closure could be reassessed in the future.

The union suit is the narrowest of the several ongoing legal battles over the Maine lobster fishery. The Maine Lobstermen’s Association has filed a suit in a federal court in Washington and the state of Maine has also intervened in the ongoing lawsuit that sparked the new regulations.

Ethan Genter

Ethan Genter

Former reporter for the Ellsworth American and Mount Desert Islander, Ethan covered maritime news and the town of Bar Harbor.

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