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Originally published in Island Ad-Vantages, November 3, 2022 and The Weekly Packet, November 3, 2022
Enviro group asks for two years for new whale rules
Keliher, cautiously optimistic, calls it ‘an about face’

by Leslie Landrigan

The Center for Biological Diversity (CBD) in a surprise move sided with the lobster industry in asking a federal district court judge to grant fishing regulators two years to come up with new whale-protection rules, according to Patrick Keliher, commissioner of Maine’s Division of Marine Resources, in an update.

CBD had originally asked for new rules in six months, which the lobster industry feared could result in a sudden and drastic curtailment of fishing, if not a complete shutdown of the fishery.

“The Center for Biological Diversity, in their case against the National Marine Fisheries Service, has done an about face,” Keliher said in an emailed update on October 25. “Their filing last Friday [October 28] asked the judge to implement a two-year process to develop and implement those rules.”

Should the judge agree to a two-year timeline, that would amount to a reprieve not just for the lobster industry but for the coast of Maine. Federal District Judge James Boasberg had decided on September 21 that NMFS must write new rules that reduce the risk to the endangered right whale by 90 percent. The lobster industry and the coastal businesses that depend on it would have had only six months to adapt to those new rules if Boasberg had agreed to CBD’s original time frame.

CBD also asked that NMFS’s biological opinion, which includes a conservation proposal, be abandoned while new rules are developed.

That rulemaking process, plus a two-year-or-more timeline, was what the industry had asked for, Keliher said. Representing lobster fishermen in the litigation are DMR, Maine Lobstermen’s Association, Maine Lobstering Union and Mass Lobstermen.

Keliher called the development “good news,” but warned the judge must agree before the two-year window is final.

“I am cautiously optimistic that he will agree that time is needed, given the complexity and difficulty of what we are facing,” Keliher said. “We expect a decision on this case in November.”

How the lawsuit happened

CBD, along with several other environmental groups, brought the initial federal lawsuit in 2018. They charged the NMFS with violating the Endangered Species Act because its existing lobster fishing regulations weren’t stringent enough.

NMFS came up with new rules on August 31, 2021, but those still weren’t strict enough for the environmentalists. They went back to court demanding NMFS reduce the risk to whales by 90 percent. The rules issued in August only reduced the risk by 50 percent, according to NMFS. Boasberg sided with the environmentalists in September and told both sides to come back with proposals in October.

That’s where CBD changed tack.

Meanwhile…

At the heart of the disagreement is whether right whales swim where lobstermen fish. Lobstermen say a 90 percent risk reduction in the Gulf of Maine won’t save any whales but will put them out of business.

In a separate lawsuit, the Maine Lobstermen’s Association has challenged NMFS’s data on the location of right whales as bad science.

“The importance of the MLA case can’t be overstated, as this is where the arbitrary use of the data is being argued, which could modify the risk reduction target, if successful,” Keliher said.

The MLA lost its initial challenge to the rule, but recently won an expedited appeal.

Keliher said the court could rule on it in late January or February.