Judge's rejection of lobstering ban draws praise of industry, ire of environmentalists

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Oct. 18—Lobster industry advocates and environmental groups offered starkly different reactions Sunday to a judge's decision blocking a federal ban on lobstering in a section of the Gulf of Maine designed to protect the endangered right whale.

The ruling, by U.S. District Judge Lance Walker, said federal regulators relied on "markedly thin" analysis that didn't provide hard proof of the whales' presence in the roughly thousand-square-mile area off the Maine coast. Advocates for the lobster industry had asked for a stay of the three-month ban, arguing there wasn't evidence that the critically endangered whales actually frequent the area.

Environmental groups accused Walker of relying on his own analysis of data rather than that of scientists. Lobstering advocates, on the other hand, praised the judge for offering a lifeline to the $1.4 billion industry, which is critical to Maine's economy.

"We are very excited," Virginia Olsen, of the Maine Lobstering Union, said in an interview. She acknowledged, however, that an appeal was possible. "We're very happy that this judge agreed (with us), and we'll just continue to stand up for the rights of fishermen and move forward."

Olsen and other industry advocates had criticized the statistical modeling used by scientists from the National Marine Fisheries Service, among other federal agencies, to create the corridor where lobstering would have been banned. The area mostly centered on the known locations of lobster buoys, which are connected to lines that can ensnare the endangered whales. But more evidence was needed that whales actually spend time there, said Olsen, who, for her part, believes that the whales congregate farther from shore, where their food has migrated.

"We need to have better data," Olsen said. "We're very thankful that the judge agreed with our objection there."

U.S. Rep. Jared Golden, a Democrat from Maine's 2nd District, applauded the court decision as "a positive signal that the voices of Maine lobstermen are being heard."

"For the first time in this regulatory process, the concerns of lobstermen were weighed fairly and as a result we have a ruling grounded in common sense and the public good," Golden said in a statement Sunday.

"The judge's decision acts on arguments that lobstermen have been making for years now: there is simply not hard data to support the idea that Maine lobster gear is killing right whales. As they have argued and as Judge Walker notes, implementing this closure would cause serious economic damage to lobstering communities without any demonstrated impact on saving right whales.

I applaud the Maine Lobstering Union for filing and prevailing in this suit on behalf of their members. They are a great example of the power of unions to get results for working people. This struggle is not over in the courts nor in the federal government, and I look forward to working with lobstermen across the state to continue to fight for fair regulations based on accurate data and hard evidence."

But environmental advocates such as the Conservation Law Foundation said the judge had overstepped in substituting his own analysis for that of scientists, endangering the whales during a time critical to the species' survival.

"At this juncture every right whale death matters as to whether we lose this species or not," said Erica Fuller, an attorney with CLF who works on the right whale issue. "It is incredibly disappointing that a federal judge substituted his judgment of the scientific basis for this closure over the many scientists working to identify areas of particularly high risk. We're confident that the agency made an evidence-based and reasoned decision when it closed this area ... to reduce entanglement risks. These critically endangered right whales need the immediate protections of this (closure) — they don't have years to wait."

The National Oceanic and Atmospheric Administration, one of the agencies supporting the ban, says North Atlantic right whales are "one of the world's most endangered large whale species, with less than 400 individuals remaining." Aside from entanglement in fishing lines, whales have been lost to collisions with vessels and have experienced disruption to their communications and behavior patterns from man-made ocean noise.

Since 2017, NOAA has documented nine right whale deaths from entanglements and another 14 injuries. Another 11 have died after being struck by vessels, contributing to an overall 50 deaths in the past four years — a sizable chunk of the dwindling population.

Earlier this year, the Maine Lobstering Union, the Damon Family Lobster Co. and Fox Island Lobster Co. sued for a temporary injunction to block the closure, which would have taken away many lobsterers' primary winter fishing grounds. The ban would have taken effect between October and January, and would have allowed ropeless fishing, a technology that's still developing and that lobsterers expect to be more expensive.

In his decision Saturday, Judge Walker noted that the National Marine Fisheries Service has deployed acoustic devices along the Maine coast that listen to whale song to locate their hot spots. That data is still being collected, and once available, would be preferable to the evidence that regulators have provider so far, the judge said.

"I find the certain economic harms that would result from allowing this closure to go into effect outweigh the uncertain and unknown benefits of closing some of the richest fishing grounds in Maine for three months based on a prediction it might be a hotspot for right whale(s)," he wrote in his decision.

Patrice McCarron, executive director of the Maine Lobstermen's Association, also praised the decision on Sunday.

"The court's decision is welcome news for the lobster industry because it prevents unnecessary and significant harm the closure would have caused hundreds of Maine lobstermen, their families and communities," she said in an email. "But make no mistake, this important victory is just one step in a long fight we must pursue against the federal government's 10-year whale plan that would decimate our industry. The MLA has filed a lawsuit against this flawed plan which will devastate Maine's lobster fishery while failing to protect endangered right whales."

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