ELLSWORTH — A federal district court judge ruled last week that the National Oceanic and Atmospheric Administration (NOAA) violated the Endangered Species Act by failing to protect right whales adequately from the risks posed by lobster fishing. While it is too early to know exactly how the ruling in a lawsuit brought by a group of environmental organizations will affect the lobster industry, U.S. District Court Judge James Boasberg asked those groups and NOAA to file briefs suggesting an appropriate “injunctive remedy” against further violations of the ESA.
Whatever that remedy may be, it is likely to come soon and have a significant impact on Maine lobstermen.
During the past several months, Department of Marine Resources Commissioner Patrick Keliher hosted a series of meetings with members of the lobster industry along the coast to try to develop suggested regulatory alternatives to changes in federal fisheries rules proposed by NOAA designed to reduce the supposed risk to endangered whales from the lobster fishery by 60 percent. In January, DMR filed suggested rules with NOAA’s National Marine Fisheries Service (NMFS) that, the department said, would come close to achieving the 60 percent reduction while still allowing lobstermen to operate in an economically viable way without increasing the inherent dangers of the fishery.
Throughout the process, Keliher warned that the pending federal lawsuit against NOAA was a “wild card” that could affect the regulatory process in undetermined ways. Last week, Keliher said that with the release of the court’s decision the wild card had been played.
Keliher addressed the “timing and impacts” of that decision in a letter to the lobster industry published on the DMR website last Friday.
“At this time” he wrote, “they are still unknown, but may come very quickly.”
“Upon an initial review, this is a deeply disappointing decision,” Governor Janet Mills said Monday. “I have instructed Commissioner of Marine Resources Pat Keliher to more thoroughly review the decision and to respond accordingly in the coming days.”
Patrice McCarron, executive director of the Maine Lobstermen’s Association, echoed Keliher’s uncertainty about the consequences of the court’s decision. In an email Monday morning, McCarron said, “We believe in our fishermen, we believe in our industry and we are committed to saving both right whales and our communities. But make no mistake, this is a daunting challenge.”
The District Court decision is narrow in its scope. It did not address the issues of whether or to what extent the lobster fishery might actually pose a risk to right whales but focused entirely on whether NOAA met the convoluted procedural requirements of three distinct but related federal laws — the Endangered Species Act, the Marine Mammal Protection Act and the Administrative Procedures Act — in 2014, when it issued the “biological opinion” (BiOp) relating to the impact of the East Coast lobster fishery on endangered right whales required by the ESA.
Federal law and regulations required that NOAA’s biological opinion include an “incidental take statement” (ITS) because the agency had determined that “(incidental) take (of endangered whales) is reasonably certain to occur” as a result of the large amount of lobster gear in the water, the court said.
The conservation groups charged, and NOAA admitted, that it established a numerical “trigger” based on a three-year average number of whales injured or killed to determine whether further review of its whale protection rules was necessary and never prepared the required statement.
According to the court, NMFS argued that lobstering “would not have been able to proceed” if the fisheries service met the requirements of the ESA.
“The Service and the statute pass each other like ships in the night,” Boasberg wrote, dismissing the NMFS argument.
“The ESA and its regulations require an ITS when the taking of an endangered species is anticipated,” Boasberg wrote. “Take was anticipated here, and NMFS did not produce an ITS. The 2014 BiOp therefore violates the ESA.”
Exactly what that means for Maine lobstermen, already pummeled by the virtual disappearance of a market for their product resulting from the impact of the coronavirus pandemic, remains to be determined.
“I know you have many questions and want answers, and frankly we are in the same boat,” Keliher wrote last week as he asked lobstermen to “be patient” as state’s lawyers examined the opinion and its consequences. “These answers will come in time as we determine what direction the judge will go.”
The decision gave some clear indications as to what that direction might be, saying, “NMFS would do well to adhere to all of the (Environmental Protection) Act’s requirements in any future BiOps” it produces with respect to the lobster or any other fishery.
“We can’t change the legal deficiencies identified by the court, but we can commit to leveraging our knowledge and experience to fight for a future for our fishery and for right whales,” McCarron said Monday.