A lobster boat tied to its mooring in the fog at Kettle Cove in Cape Elizabeth last August. Lobster industry groups are intervening in a case brought by the Center for Biological Diversity and others that argues new federal lobstering restrictions aren’t adequate to save endangered whales, and that the fishery’s continued operation poses an existential threat. Shawn Patrick Ouellette/Staff Photographer

While Maine’s lobster industry has been fighting an offensive legal battle against impending rules to protect endangered North Atlantic right whales, it also is playing defense in a case brought by environmentalists that seeks to shut down the lobster fishery entirely.

Lobster industry groups are intervening in a case brought in Washington, D.C.’s U.S. District Court by the Center for Biological Diversity and other plaintiffs that argues the new federal restrictions aren’t adequate, and that the fishery’s continued operation poses an existential threat to the whales.

The plaintiffs in that case, Center for Biological Diversity v. (U.S. Commerce Secretary) Gina Raimondo, are asking the court to vacate a National Marine Fisheries Service “biological opinion” that serves as the basis for the new restrictions and conservation plan, saying they don’t go far enough to meet the requirements of the Endangered Species Act and Marine Mammal Protection Act.

Lawyers for the lobster industry recently filed a legal brief arguing that the environmental groups are misreading the two laws and attempting to force the state’s lobster fishery under federal jurisdiction.

In a separate case, the lobstering groups are fighting for the biological opinion to be revised, but not vacated, to take into account what the lobster industry says is the best available science.

EXISTENTIAL THREAT

Meredith Mendelson, deputy commissioner of the state Department of Marine Resources, said at last month’s lobster council meetings that the case brought by the Center for Biological Diversity represents the greatest threat the Maine lobster industry currently faces.

Without a valid biological opinion, the fisheries’ service can’t authorize lobstering in federal waters, where larger operations tend to fish, Mendelson said during the meetings. Though the judge had earlier allowed the fisheries service to revise a previous opinion without vacating it, she said it isn’t certain that he would do so again.

Maine Lobstermen’s Association Executive Director Patrice McCarron said in a declaration submitted with the brief that closure of the lobster fishery could affect thousands of lobstermen in Maine’s fleet of small, owner-operated businesses, many of whom do not have the capital or cash flow to survive unexpected shutdowns. McCarron said invalidating the opinion also would affect processors, truckers and other businesses in the lobster supply chain.

The Office of the Maine Attorney General, which initially represented the Department of Marine Resources in the case, advised the department to seek outside counsel because the case was progressing into intricate details of federal environmental laws that are beyond its expertise. Gov. Janet Mills’ office provided discretionary funds to retain the Los Angeles-based law firm Nossaman LLP, and the lobster industry is seeking more funding from the Maine Legislature for its legal defense, primarily for this case.

In the legal brief, filed in February, the lobstermen’s association argues that the environmental groups failed to consider the human and economic costs of shutting down the lobster fishery as is required by law.

“The lives and livelihoods of the hard-working people and families that will indisputably suffer if (the) plaintiffs have their way are also an inextricable part of the … equation,” the brief says.

GOAL OR MANDATE?

The Endangered Species Act requires federal agencies to ensure that any action they authorize, fund or carry out “is not likely to jeopardize the continued existence of any endangered species,” and the results of that analysis are to be included in a biological opinion.

The Center for Biological Diversity claims the fisheries service’s biological opinion artificially minimizes the American lobster fishery’s impact on right whales by only looking at the fishery’s activity in deeper, federal waters and ignoring its activity in state waters.

The lobstermen’s group disagreed, arguing in its brief that federal regulators did consider state fishing activities as is required by law. It said the plaintiffs are trying to “bind the states and prevent or impede them from continuing to authorize and manage their fisheries as state law requires them to do.”

“The state authorized fisheries are not authorized, funded or carried out by (the fisheries service),” they wrote. “The fact that (the service) may regulate the marine mammal incidental take of those fisheries … does not supplant the jurisdiction of the states to authorize their fisheries in accordance with state law.”

Lawyers for the lobstermen argued that the fisheries service doesn’t have jurisdiction to shut down an entire state fishery, and that it can only “take enforcement action against noncompliant vessels.”

The biological opinion forms the basis for a plan to significantly reduce the whales’ mortality risk from fishing activity by 2030. But the environmental groups have argued that the plan’s 10-year timeline is much too long, and that the mortality risk for the whales – whose population sank to 336 in 2020, a nearly 20-year low – must be eliminated almost entirely in half that time, as is required by the Marine Mammal Protection Act.

The lobstermen’s association disagreed, saying the law requires plans that set “goals” to reduce accidental animal deaths or injuries and include measures the secretary of commerce “expects” will reduce them within the specified timeframe.

“A plan that does not have these goals is noncompliant … a plan that does have these goals is compliant,” the brief says. “There is no requirement that the goals be satisfied (otherwise they would be mandates, not goals).”

PROCESS HIJACKED?

The lobstermen’s association also argues that the environmental groups are trying to hijack the process that has led to the protective measures being put in place to reduce the risks to whales.

“Normally this process is a government process. It’s a very collaborative process with stakeholders; both fishermen and environmental groups are at the table to talk about it,” said Marianne LaCroix, executive director of the Maine Lobster Marketing Collaborative. “But when it goes into the courts and suddenly you have a judge deciding fisheries management policies, is a very different and uncomfortable situation.”

The federal Atlantic Large Whale Take Reduction Team, consisting of lobster harvesters, researchers, fishery managers, federal agency representatives, environmental advocates and other stakeholders, has been developing strategies to reduce the frequency and severity of interactions between whales and fishing gear since it was formed in 1999.

The lobstermen’ group argues in its brief that it is “disingenuous” for the Center for Biological Diversity, which is a member of the team, to challenge measures it has supported throughout the planning process, and to characterize the measures put in place as a failure to act. The brief claims that the plaintiffs are trying to subvert what is designed to be a collaborative process and bring it entirely under their control.

“The right path is for the team-driven process to continue, and to ultimately succeed by using the best available data,” the brief states.