BOSTON — The legal battle over the planned closure of 967 square miles of offshore fishing ground to traditional lobstering wages on in Maine and has now spread to another courtroom.
Several conservation groups have filed an appeal in the First Circuit Court of Appeals in Boston, challenging a Maine federal court judge’s decision to allow lobstering to continue in the area.
Earlier this month, the Conservation Law Foundation, Center for Biological Diversity and Defenders of Wildlife filed an emergency motion to stay the preliminary injunction against the federal agency that planned to enact the closure. The closure was included in a suite of new rules to help protect the endangered right whale. It covered an area that is about 30 miles offshore and runs from the western edge of Mount Desert Island to Casco Bay.
The closure was set to start in mid-October, but was contested by the Trenton-based Maine Lobstering Union and Stonington-based Damon Family Lobster Co. The two, along with a Vinalhaven lobster dealer, argued that the justification for the closure wasn’t based in the best available science and wouldn’t actually help save the whales.
U.S. District Court Judge Lance Walker largely agreed with the argument and halted the closure while the judicial review over the new rule from the National Oceanic and Atmospheric Administration proceeded.
The conservation groups’ latest legal maneuver will attempt to overturn Walker’s decision to allow lobstering to continue in the area, known as LMA1. They argue that the closure relied on hard scientific data, including recent and historical sightings, acoustic monitoring, prey distribution and buoy line density data.
NOAA, which promulgated the rules, said the closure was based on an overlap between a high density in fishing line and whales.
The conservation groups claim that Walker has invented his own standard by arguing that NOAA must first determine that right whales aggregate in the area before implementing fishing restrictions.
“No such standard exists in the law, nor would it be protective enough under the circumstances,” they wrote in their appeal.
They contended that the court improperly asserted that only known and predictable whale aggregations, rather than hotspots where vertical lines and whales are, justify closures and erred in its finding that NOAA strayed from its past practices.
The conservation groups said the federal agency gathered all the data it could in making the decision and also noted that the lobster union and dealers failed to provide hard evidence to demonstrate the chance of irreparable damages caused by the closure.
Judge Walker is standing by his decision to allow lobstering to continue and rejected a motion for a stay lobbied by the conservation groups in his court.
He concluded that NOAA was “not likely to succeed in appealing the preliminary injunction,” and said he halted the enforcement of the seasonal closure “based on what I deemed to be a failure to address whether right whales aggregate” in the closure area.
“I concluded that because (National Marine Fisheries Service) relied so heavily on modeling techniques to justify the closure without providing or explaining their inputs, and contrary to its own past practices did so to the exclusion of providing any evidence that right whales actually pass through (the restricted area), a deeper examination is warranted to ensure that the closure is based on substantial evidence on the record,” he wrote.
In the arguments presented to him, Walker said that the union and other plaintiffs showed a likelihood of prevailing in the challenge of the closure and also indicated that it would deal an irreparable blow to them and the lobstering industry as a whole.
“(W)hile I recognize that the standard for preliminary injunctions generally favors endangered species, the public’s interest in evidence-based rulemaking as well as the balance between certain financial and territorial loss and potentially speculative species management favored preserving the status quo for the course of the litigation,” he wrote.