Maine’s lobster industry is asking the state to continue bankrolling its legal defense fund by diverting a cut of its licensing fees intended to market the state’s signature crustacean into its court battles to fight federal whale protections that threaten the fishery’s future.

“We’re in the fight of our lives here,” House Minority Leader Billy Bob Faulkingham said. “Without the fishermen, there is no lobster to market. If we don’t win our lawsuits, there won’t be any fishermen left. That hurts all of Maine. It’s really that simple.”

Josh Edgcombe, co-owner of SoPo Seafood, takes a lobster from the tank in early January.  Shawn Patrick Ouellette/Staff Photographer

The Winter Harbor Republican and lobsterman made his pitch for funding Thursday to the Marine Resources Committee at a public hearing on his bill, L.D. 710. It would give 20% of the industry’s license surcharges – about $380,000 a year – to the legal defense fund through 2030.

The fund was created to cover legal fees incurred by the Maine Lobstermen’s Association and the Maine Lobstering Union in the fight to overturn the National Marine Fisheries Service’s new whale protections and defend against environmental groups that want even tougher protections in place.

Originally, Faulkingham had sought a $1 million contribution over two years from the general fund, but after discussions with state officials, he changed it to a 20% cut of a marketing surcharge paid out of Maine lobster licenses, for a total of $2.3 million.

Faulkingham said Thursday he thought it was more fiscally and morally responsible to use money paid by the lobster industry itself to the Maine Lobster Marketing Collaborative, a quasi-public state agency created by the Legislature, than tapping directly into taxpayer dollars.

State officials worried the use of public money to fund private lawsuits could set a dangerous precedent.

“Does the state want to fund the private industry groups with general fund dollars?” Department of Marine Resources Commissioner Pat Keliher said during testimony before the Marine Resources Committee. “Where does that stop?

That is the same formula that lawmakers used last year to create the two-year fund. The only difference between that and the amended version of Faulkingham’s current bill is the time frame – he wants to stretch the annual contribution to 2030. Any unused portion would be returned to the state.

Under the terms, the defense fund could be used to reimburse either of the two trade groups for money spent on legal proceedings involving the federal right whale regulations, but not the defamation lawsuit MLA recently filed against Seafood Watch for red listing Maine lobster as unsustainable.

The Maine Lobster Marketing Collaborative opposes the amendment. Director Marianne LaCroix said it would hurt her organization’s ability to defend the industry in the court of public opinion.

She said the group has shifted away from its efforts to market the crustacean to high-end chefs to put it on their menus and toward public campaigns to combat negative publicity surrounding the right whale lawsuits and emphasize the industry’s sustainable practices.

“The legal issues that the industry is facing are very critical, but another very important component is a positive public opinion of Maine lobster and the Maine fishery,” LaCroix said. “We are at a really critical time from a public relations standpoint. We are under intense media scrutiny.”

Without the collaborative’s work, the regulatory setbacks would have hurt the industry much more, she said. Customers continued to buy Maine lobster after warning dealers they would stop if it wasn’t found to be whale-safe because of the collaborative’s work, LaCroix said.

She warned that the collaborative wouldn’t be able to respond to the next crisis with the same gusto if it did not have an adequate budget. She noted that it had yet to feel the full force of last year’s 20% cut; the previous legal defense fund bill did not go into effect until August 2022.

The bill met with criticism from a handful of animal-rights activists who said the state shouldn’t spend taxpayer dollars to prop up an industry that makes millions of dollars a year and poses a threat to an endangered species.

“We believe it is imperative that the lobster industry not delay modernizing its equipment and adapting its working patterns to save the right whales,” said Elizabeth Gallie of South Portland, Maine Animal Coalition. “The money of the taxpayers of Maine would be better spent on prevention and not litigation.”

But lobstermen note that their industry employs thousands of people on fishing boats and docks, many thousands more up and down the supply chain, and that lobstering dollars breathe life into small towns along most of Maine’s coastline. In 2022, Maine lobstermen landed $389 million worth of lobster.

Although the industry makes millions, Maine lobstermen aren’t all rich, Stonington fisherman Kate O’Neal said. They are managing higher bait costs, higher fuel costs and lower lobster prices while fundraising to bolster their industry’s legal defense fund, she said.

O’Neil would rather the defense fund get 80% of the license fee and the collaborative 20%.

“We’re lobstermen, we’re working hard and we bring the revenue into Maine,” O’Neal said. “I need that legal defense. I haven’t renewed my license this year because I don’t know where this industry is going. I want to fight for it. I want to have a bigger legal defense.”

In 2021, the National Marine Fisheries Service released a 10-year whale plan that forces Maine lobstermen to slash the fishery’s risk to right whales by 98% by cutting the amount of surface-to-seabed rope that could entangle a right whale and reducing fishing in offshore waters during whale migration.

The industry trade groups sued the government, claiming the regulations violated marine mammal and endangered species laws by using hypothetical worst-case scenarios to forecast the industry’s impact on the endangered right whale, a species now believed to number below 340.

The National Oceanic and Atmospheric Administration – the federal agency overseeing lobster fishing and right whale protection – holds that entanglement in fishing gear is the leading cause of injury and death for North Atlantic right whales. Ship strikes and low calving rates also play a role.

NOAA estimates that over 80% of right whales have been entangled in fishing gear at least once.

Maine lobstermen and state officials argue there is no proof that right whales are being entangled in Maine lobster fishing rope. The state industry has never been linked to a right whale death, and the last known entanglement was in 2004. That whale was freed and survived.

However, scientists note that a historic lack of gear marking has made it difficult to tell where a whale may have become entangled. Many right whales that die from entanglement injuries are found with no rope left on them at all. Any of those, they say, could have been entangled in Maine gear.

In 2021, the trade groups sued the NMFS over the 10-year whale plan in the U.S. District Court for the District of Columbia. A year later, the court ruled against the lobster industry on all counts. It appealed. Oral arguments were heard in February. A decision is expected as soon as April.

On the other legal front, the industry intervened in a lawsuit brought by several environmental groups that claimed NMFS had not done enough to protect the right whale. In July, the court ruled in favor of the environmental groups, but Congress intervened in December and delayed the whale plan six years.

“The Maine lobster industry is under attack,” Faulkingham said. “We’re facing crippling regulations and industry-collapsing lawsuits. While we have made progress in winning the battle of public opinion, that’s not where this battle is being fought. It’s being fought in court.”