Notice to Maine Lobster Industry from Commissioner Keliher

Dear Industry Member,

Last summer the Department of Marine Resources (DMR), with the permission of Governor Mills and Attorney General Frey, hired outside legal counsel to represent the State's interests in litigation related to the ever-evolving whale regulations.

The firm we hired has extensive experience navigating the Endangered Species Act and Marine Mammal Protection Act. In September DMR filed for and was granted intervenor status in Center for Biological Diversity v. Ross, a lawsuit before the US District Court which, if decided in the plaintiffs favor, could expand protections in state waters, seriously alter, or even close Maines lobster fishery.

On December 16th, again with the approval of the Governor and Attorney General, we filed another motion to intervene in MLA v. National Marine Fisheries Service, a separate suit brought by Maine Lobstermens Association (MLA). We have also been granted intervening status in this case. These are separate cases in front of the same judge in US District Court in the District of Columbia.

MLAs complaint asserts that NMFSs new Biological Opinion, released in May, is unlawful because NMFS acted arbitrarily by failing to rely on the best available scientific information and failing to account for the positive impact of conservation measures already adopted by the Maine lobster fishery.

Why is this case important?

Weve all heard the term "best available scientific information" a lot in the past couple of years. Under the law, it has real meaning. Its use is required under the Endangered Species Act, however we believe they failed to rely on the best scientific information and the result is a series of regulatory changes that will be required over the next decade which have the potential to devastate Maines lobster industry while having minimal beneficial impacts on the right whale population.

The lawsuit also asserts that NMFS made assumptions about risk that are just not accurate. This includes the assumption that 50% of unknown serious injuries and mortalities should be assigned to the US, despite the fact that there have been zero known entanglements associated with the Maine lobster fishery in nearly twenty years. Unchallenged, these assumptions jeopardize your livelihood.

As NMFSs own Biological Opinion shows, even if all fisheries are removed from the US Atlantic Coast, the right whale population will continue to decline if calving rates remain low and mortality in Canadian waters remains high.

Based on the schedule set by the judge, these cases are unlikely to wrap up before early summer. I will continue to update you as these cases move forward, and beginning next month, we will be hosting Lobster Zone Council meetings to provide additional information to the industry.

At a November Atlantic Large Whale Take Reduction Team meeting, NMFS announced that the new population estimate for right whales is 336. This decline was not unexpected due to the high number of mortalities that occurred in Canadian waters in 2019. However, NMFS has indicated it is considering requiring further risk reduction for the lobster fishery sooner than the schedule laid out in the Biological Opinion. While next steps for the lobster fishery have not been confirmed, it is this very type of development which we are pushing back against.

The Governor and I will continue to defend Maines lobster industry in these lawsuits, and as Commissioner, I have assigned significant staff to work on this issue to ensure we are well prepared on both the legal and regulatory front. In this time of uncertainty in the industry, you can be sure we will continue to do all we can to support you, from the courts, to Congress, to the Presidents Cabinet.
I hope that you all have a healthy and happy holiday season, and I look forward to sharing better news in the New Year.

A press release from Governor Mills can be found at: https://www.maine.gov/governor/mills/news/governor-mills-announces-maine-granted-intervenor-status-lawsuit-challenging-federal

Pat

Patrick Keliher Commissioner Maine Department of Marine Resources